State Building: Theory and Practice (Routledge Advances in International Relations and Global Politics)

State-building

This study brings together internationally renowned academics to provide a detailed insight into the theory and practice of state-building. State-building is one of the dominant themes in contemporary international relations. This text addresses both the theoretical logic behind state-building and key practical manifestations of this phenomenon. Unlike ‘how-to’ manuals that seek to identify best practice, this book interrogates the normative assumptions inherent in this practice and the manner in which state-building impacts on contemporary international relations. The logic of state-building is explored and analysed providing insight into the historical context that catalysed this process, the relationship between international law and the practice of international administration and the political ramifications and implications of external governance. Case studies on Bosnia, Kosovo and East Timor provide practical examples of key contradictions within the state-building process, highlighting the lack of accountability, democracy and vision manifest in these operations. Offering a coherent critical analysis of an increasingly important international issue, this unique volume will appeal to students and scholars of International Relations, Comparative Politics and Political theory. Aidan Hehir is Lecturer in International Relations in the Department of Politics at the University of Sheffield, UK. Neil Robinson is Senior lecturer in the Department of Politics and Public Administration, University of Limerick, Ireland.

Routledge Advances in International Relations and Global Politics

1 Foreign Policy and Discourse Analysis France, Britain and Europe Henrik Larsen 2 Agency, Structure and International Politics From ontology to empirical enquiry Gil Friedman and Harvey Starr 3 The Political Economy of Regional Co-operation in the Middle East Ali Carkoglu, Mine Eder, Kemal Kirisci 4 Peace Maintenance The evolution of international political authority Jarat Chopra 5 International Relations and Historical Sociology Breaking down boundaries Stephen Hobden

6 Equivalence in Comparative Politics Edited by Jan W. van Deth 7 The Politics of Central Banks Robert Elgie and Helen Thompson 8 Politics and Globalisation Knowledge, ethics and agency Martin Shaw 9 History and International Relations Thomas W. Smith 10 Idealism and Realism in International Relations Robert M. A. Crawford 11 National and International Conflicts, 1945–1995 New empirical and theoretical approaches Frank Pfetsch and Christoph Rohloff

12 Party Systems and Voter Alignments Revisited Edited by Lauri Karvonen and Stein Kuhnle

19 The EU and NATO Enlargement Richard McAllister and Roland Dannreuther

13 Ethics, Justice & International Relations Constructing an international community Peter Sutch

20 Spatializing International Politics Analysing activism on the internet Jayne Rodgers

14 Capturing Globalization Edited by James H. Mittelman and Norani Othman

21 Ethnonationalism in the Contemporary World Walker Connor and the study of Nationalism Edited by Daniele Conversi

15 Uncertain Europe Building a new European security order? Edited by Martin A. Smith and Graham Timmins 16 Power, Postcolonialism and International Relations Reading race, gender and class Edited by Geeta Chowdhry and Sheila Nair 17 Constituting Human Rights Global civil society and the society of democratic states Mervyn Frost 18 US Economic Statecraft for Survival 1933–1991 Of sanctions, embargoes and economic warfare Alan P. Dobson

22 Meaning and International Relations Edited by Peter Mandaville and Andrew Williams 23 Political Loyalty and the Nation-State Edited by Michael Waller and Andrew Linklater 24 Russian Foreign Policy and the CIS Theories, debates and actions Nicole J. Jackson 25 Asia and Europe Development and different dimensions of ASEM Yeo Lay Hwee 26 Global Instability and Strategic Crisis Neville Brown

27 Africa in International Politics External involvement on the continent Edited by Ian Taylor and Paul Williams 28 Global Governmentality Governing International Spaces Edited by Wendy Larner and William Walters 29 Political Learning and Citizenship Education Under Conflict The political socialization of Israeli and Palestinian youngsters Orit Ichilov 30 Gender and Civil Society Transcending boundaries Edited by Jude Howell and Diane Mulligan 31 State Crises, Globalisation and National Movements in North-East Africa The Horn’s dilemma Edited by Asafa Jalata 32 Diplomacy and Developing Nations Post-Cold war foreign policy-making structures and processes Edited by Justin Robertson and Maurice A. East

33 Autonomy, Self-governance and Conflict Resolution Innovative approaches to institutional design in divided societies Edited by Marc Weller and Stefan Wolff 34 Mediating International Crises Jonathan Wilkenfeld, Kathleen J. Young, David M. Quinn and Victor Asal 35 Postcolonial Politics, The Internet and Everyday Life Pacific traversals online M. I. Franklin 36 Reconstituting the Global Liberal Order Legitimacy and regulation Kanishka Jayasuriya 37 International Relations, Security and Jeremy Bentham Gunhild Hoogensen 38 Interregionalism and International Relations Edited by Heiner Hänggi, Ralf Roloff and Jürgen Rüland 39 The International Criminal Court A global civil society achievement Marlies Glasius

40 A Human Security Doctrine for Europe Project, principles, practicalities Edited by Marlies Glasius and Mary Kaldor 41 The History and Politics of UN Security Council Reform Dimitris Bourantonis 42 Russia and NATO Since 1991 From cold war through cold peace to partnership? Martin A. Smith 43 The Politics of Protection Sites of insecurity and political agency Edited by Jef Huysmans, Andrew Dobson and Raia Prokhovnik 44 International Relations in Europe Traditions, perspectives and destinations Edited by Knud Erik Jørgensen and Tonny Brems Knudsen 45 The Empire of Security and the Safety of the People Edited by William Bain 46 Globalization and Religious Nationalism in India The search for ontological security Catrina Kinnvall

47 Culture and International Relations Narratives, natives and tourists Julie Reeves 48 Global Civil Society Contested futures Edited by Gideon Baker and David Chandler 49 Rethinking Ethical Foreign Policy Pitfalls, possibilities and paradoxes Edited by David Chandler and Volker Heins 50 International Cooperation and Arctic Governance Regime effectiveness and northern region building Edited by Olav Schram Stokke and Geir Hønneland 51 Human Security Concepts and implications Shahrbanou Tadjbakhsh and Anuradha Chenoy 52 International Relations and Security in the Digital Age Edited by Johan Eriksson and Giampiero Giacomello 53 State-building Theory and practice Edited by Aidan Hehir and Neil Robinson

State-building Theory and practice

Edited by Aidan Hehir and Neil Robinson

First published 2007 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2007 Aidan Hehir and Neil Robinson for selection and editorial matter; individual contributors, for their contributions All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data State-building : theory and practice / edited by Aidan Hehir and Neil Robinson. p. cm. Includes bibliographical references and index. 1. Nation-building. I. Hehir, Aidan, 1977– II. Robinson, Neil, 1964– JZ6300.S73 2007 327.1'1–dc22

ISBN 0-203-96471-3 Master e-book ISBN

ISBN10: 0–415–39435–X (hbk) ISBN10: 0–203–96471–3 (ebk) ISBN13: 978–0–415–39435–2 (hbk) ISBN13: 978–0–203–96471–2 (ebk)

2006025434

Aidan would like to dedicate this volume to Sarah and Esmé . . . and Tig Neil would like to dedicate this volume to Maura, Sáoirse and Mani

Contents

List of contributors Acknowledgements List of abbreviations 1 State-building and international politics: the emergence of a ‘new’ problem and agenda

xiii xiv xv

1

NEIL ROBINSON

2 Colonialism redux? Territorial administration by international organizations, colonial echoes and the legitimacy of the ‘international’

29

RALPH WILDE

3 State-building: power without responsibility

50

PHILIP CUNLIFFE

4 The state-building dilemma: good governance or democratic government?

70

DAVID CHANDLER

5 Witnessing the demise of the developing state: problems for humanitarian advocacy

89

VANESSA PUPAVAC

6 Who guards the guardians? International accountability in Bosnia RICHARD CAPLAN

107

xii Contents 7 UNMIK – facilitating Kosovo’s final status or its future status? Reconceptualising the problem, changing the solution

125

AIDAN HEHIR

8 Building state failure in East Timor

142

JARAT CHOPRA

9 In praise of folly: international administration and the corruption of humanity

167

WILLIAM BAIN

10 Conclusion: from intervention to administration

184

AIDAN HEHIR

Index

193

Contributors

William Bain, Department of International Relations, University of Wales Aberystwyth. Richard Caplan, Linacre College, University of Oxford. David Chandler, Centre for the Study of Democracy, University of Westminster. Jarat Chopra, The Watson Institute for International Studies, Brown University. Philip Cunliffe, Department of War Studies, Kings College London. Aidan Hehir, Department of Politics, University of Sheffield. Vanessa Pupavac, School of Politics and International Relations, University of Nottingham. Neil Robinson, Department of Politics and Public Administration, University of Limerick. Ralph Wilde, Faculty of Laws, University College London.

Acknowledgements

Most of the chapters in this volume started as contributions to a workshop on state-building and international politics held at the University of Limerick in April 2005. The conference was supported financially by the Department of Politics and Public Administration, the Centre for Peace and Development Studies and the College of Humanities Research promotion fund at Limerick, and jointly organised under the auspices of the Department of Politics and Public Administration and the Centre for Peace and Development Studies. We would like to thank all who participated in the workshop, especially Sini˘s a Male˘s evi˘c , Erika Harris and Amalendu Misra, who gave papers to the workshop that are not included in this volume. We would like to thank our families and friends who assisted us in this process. Richard Caplan’s article ‘Who Guards the Guardians? International Accountability in Bosnia’ originally appeared in International Peacekeeping, vol. 12 (3), 2005, pp. 463–76. We acknowledge the permission granted by Taylor & Francis to reprint this article. Information on Taylor & Francis is available at ⬍www.tandf. co.uk/journals⬎ Jarat Chopra’s article ‘Building State Failure in East Timor’ originally appeared in Development and Change, vol. 33 (5), 2002, pp. 979–1000. We acknowledge the permission granted by Blackwell Publishers to reprint this article. William Bain’s article, is reprinted with permission from William Bain, ‘In Praise of Folly: International Administration and the Corruption of Humanity’, International Affairs, vol. 82 (3), 2006, pp. 523–38, Blackwells.

Abbreviations

ADB BiH BIICL CEP CNRT CPA DA DAC DFO ESI ETTA EU EUAM EUFOR FRY GOBI HR ICB ICG IDA IFI IFOR IISS INTERFET ITA JAM KFOR KLA

Asian Development Bank Bosnia-Herzegovina British Institute for International Comparative Law Community Empowerment and Local Governance Project (East Timor) National Council of Timorese Resistance Coalition Provisional Authority (Iraq) District Administrator District Advisory Council (East Timor) District Field Officer European Stability Initiative East Timor Transitional Administration European Union European Union Administration of Mostar European Union Force in Bosnia and Herzegovina Federal Republic of Yugoslavia Growth, Oral Rehydration, Breastfeeding, Immunization High Representative (BiH) International Commission on the Balkans International Crisis Group International Development Association International financial institution Implementation Force (Operation Joint Endeavour), UN force in BiH International Institute for Strategic Studies International Force in East Timor international territorial administration Joint Assessment Mission Kosovo Force Kosovo Liberation Army

xvi Abbreviations MIP MSF NATO NC NCC NGOs OHR ONUC OSCE PIC PMC SFOR SR TFET UN UNAMET UNDP UNMIK UNOSOM UNTAC UNTAE UNTAES UNTAET UNV

Mission Implementation Plan Medecins Sans Frontieres North Atlantic Treaty Organization National Council (East Timor) National Consultative Council (East Timor) non-governmental organizations Office of the High Representative (BiH) United Nations Operation in the Congo (Opération des Nations Unies au Congo) Organization for security and Co-operation in Europe Peace Implementation Council Permanent Mandates Commission Stabilisation Force (BiH) Special Representative (Kosovo) Trust Fund for East Timor United Nations United Nations Mission in East Timor United Nations Development Programme UN Interim Administration Mission in Kosovo United Nations Operation in Somalia United Nations Transitional Authority in Cambodia United Nations Temporary Executive Authority UN Transitional Administration in Eastern Slavonia, Baranja and Western Sirmiun UN Transitional Administration in East Timor UN Volunteer

1

State-building and international politics The emergence of a ‘new’ problem and agenda Neil Robinson

Introduction It has become conventional wisdom since the end of the Cold War, and especially post-9/11 when the problems of Afghanistan came to the forefront of world attention that a major, and perhaps principal, threat to peace and security globally is the breakdown of state power.1 The conventional wisdom is correct to an extent. The breakdown of political authority within states is a major source of conflict and warfare,2 and of the humanitarian problems, such as refugee flows, that stem from conflict. Enfeebled state power has also provided various forms of armed groups – ethnic, religious, criminal, ideological or some combination thereof – to organize and extend their operations beyond national boundaries, and most famously in the case of Al-Qaeda and insofar as it exists as a coherent organization, globally. Statehood and peace are thus related; as the International Commission on Intervention and State Sovereignty report, The Responsibility to Protect, put it ‘a cohesive and peaceful international system is far more likely to be achieved through the cooperation of effective states, confident of their place in the world, than in an environment of fragile, collapsed, fragmenting or generally chaotic state entities’.3 Whilst the conventional wisdom might be right to highlight the relationship between state failure and threats to peace and security, it has not been able to move from this to a clear idea of what might be the solution to the problems of stateness beyond the obvious observation that if state breakdown is a problem it should be addressed by state reconstruction. It would be pleasant to be able to claim that this book contains such a solution, even if only in outline, but it does not. Instead the essays in this book try to do one of two things. First, they look at the general problems that the issue of state-building raises in international politics, presenting different critical perspectives on the

2 Neil Robinson nature, purpose and general prospects for international involvement in state-building. Second, they look at a very specific aspect of statebuilding in international politics, namely state-building under the auspices of a transitional administration4 established by the international community. The contrast between the general and the specific lets us look at how the discourse on state-building is shot through with paternalism and downplays the ability and necessity for local political action as the source of state-building. This is not to deny that some form of international assistance in the shape of resource and knowledge transfers may be necessary. Rather, it highlights some of the dangers that these transfers can bring when they take the form of state-building rather than assistance in state-building. The specific focus on the relationship between international territorial administrations and state-building throws this in to sharp relief since international territorial administration directed towards statebuilding is the most extreme example of externally led state-building practices. The contrast between the general arguments about state-building in the book and the specific instances of international state-building through transitional international territorial administration together show how much work and thinking need to be done in this area. The rest of this chapter seeks to contribute to this discussion by looking at the way in which state-building has become an issue – a ‘new’ problem – in international politics and how its emergence as an issue at that this time has shaped the state-building agenda. It will argue that a series of changes in international politics – globalization, the end of the Cold War, changes in developmental discourse, alongside the existence of a larger array of weak states since decolonialization – have created a dangerous situation in which the state-building agenda has become simplified and universalized. The chapter will then introduce the other contributions to this volume and try to draw out some of the ways that they deal with the aforementioned themes. Another take on these issues can be found in the conclusion to the volume.

The rise and character of the contemporary state-building agenda The context in which the contemporary agenda for state-building has developed is the post-Cold War world. The evolving international system after the Cold War has both created the perceived need for statebuilding and has given state-building its particular, simplified character. The boundary between cause – what has lead to state-building’s

State-building and international politics 3 increased prominence in international politics – and effect – what state-building is imagined to be in theory and practice – is often not all that distinct. Roughly, however, we can say that state-building has increasingly been seen as necessary because of the collapse of the bipolar Cold War order, which gave a measure of artificial stability to some states in the world and helped to compensate for their weakness. The need for international assistance in state-building has been a product of some of the humanitarian problems that this collapse contributed to, plus certain changes that are associated with the idea of globalization. These changes have created a belief that the state in general is in crisis and that this crisis is deeper for certain forms of state so that intervention to save them is more necessary than in the past. This in turn has helped to create a simplified view of what statebuilding should produce. If the crisis of the state afflicts a particular kind of state the obvious solution is to build the other kind, the state that is less threatened by globalization and more adaptable to its demands regardless of circumstance, suitability or practicality. The security threat that the breakdown of state power is supposed to pose globally, rather than to the unfortunate inhabitants of a state where power fragments to some form of anarchy, and to that state’s neighbours, is not the cause of simplification but has magnified the dangers of breakdown in state power and hyped the simplified solution to it. What we are trying to understand here, then, is how state weakness, which like the poor has always been with us, has been transformed into a global problem and, moreover, became an issue for humanitarian intervention in a particular way. To understand these things requires us first to say a few words about what weak and strong states are historically so that we can look at how the environment in which states are weak changes and how the state-building agenda has arisen in response to this changing environment.5 Weak states: a basic outline A weak state is a state that does not have ‘capacities to penetrate society, regulate social relationships, extract resources, and appropriate or use resources in determined ways’.6 Where these capacities are high states are, in Mann’s terms, possessed of infrastructural power.7 This form of power exists where there is a cross-penetration of state and society so that decision making is not isolated from social concerns. The state’s decision- making powers are created by negotiation of its functions, rights and responsibilities, with this negotiation carried out through the interaction of state officials and social representatives.

4 Neil Robinson Being neither isolated from society, nor dominated by it, a state with high infrastructural power can claim to work for a common good and extract and use resources appropriated from society in a regularized, routinized fashion. It can do this without having to use a large part of the revenue that it collects to coerce resources from its subjects, and has the ability to redefine bureaucratic and social responsibilities mutually and periodically so that state capacity can be increased or decreased in response to pressure for security, welfare provision and changing forms of international competition. States that are strong and possess infrastructural power are thus adaptive and ‘organic’.8 Weak states, which lack this infrastructural power, are not adaptive. They are based on despotic power, that is, state officials centralize, or try to centralize, decision making rather than embed it in society. State policy and form are imposed by elites, rather than negotiated, and enforced through the state’s possession of coercive resources, rather than accepted and enacted by society generally. This form of power is relatively inefficient in comparison to infrastructural power. Whilst state officials may have a high degree of freedom from social pressure to set taxes and decide state expenditure, this freedom does not produce general social benefits. This is because office-holders need to insure their power, or because they are uncertainty of it in the absence of social support and checks on political competition. Where officeholders need to insure their power from rivals they may transfer state resources to supporters and/or buy off opposition. Where officeholders are uncertain of their power and their ability to hold it over time they may appropriate those resources for personal ends as a sort of pension plan. Either way, the effect is the same. Office holding is proprietary, rather than impersonal, and officials do not have an ‘encompassing interest’ in their domain, or only have an interest faintly; like Olson’s ‘roving’, as opposed to ‘stationary’, bandits, they do not gain from reducing their rate of tax theft since in doing so they may lose office or may leave behind something for their rivals to plunder at a later date.9 Under these circumstances the rule of law and stable property rights do not develop and power is not institutionalized – in the absence of rule-based bureaucratic behaviour – or accountable. The supply of public goods is not more important to office-holders than the provision of private goods and personal gain. Moreover, the fragile hold that leaders may have on office can further impede the adaptability of weak states. Leaders have to calculate the effect of change on their tenure and may decide that reform is not worth it if there is a likelihood that it will lead to a loss of political resources as vested interests affected by change defect to opponents.10

State-building and international politics 5 The spread of the weak state and its varieties We can see from this outline of what constitutes a weak state that moving from weakness to strength is a politically fraught and difficult process. For much of history this has not mattered. The vast majority of states in history have been weak in the sense that they did not have large reserves of infrastructural power. Weakness was not, however, a problem for them because they were not necessarily confronted by stronger states (in terms of competitor states being possessed of infrastructural power) so that their security and sovereignty were not threatened because weakness equalled backwardness. Moreover, what was required primarily of a state, securing borders against other states that relied also on despotic power, was relatively uncomplicated to organize financially and administratively in comparison to some of he tasks that states with high degrees of infrastructural power undertake (such as the provision of mass social welfare). Finally, historically, weak states could also be moderately organic. They did not penetrate society directly or extensively, but some combination of religious affiliation or absence of strongly defined or politicized ethnic differences meant they could be organic by default since they could have a spiritual claim on popular allegiance, or else there was no clear alternative state project to which people could attach themselves.11 This situation began to change in the post-Second World War period with the proliferation of new states during decolonialization, and this change accelerated again after the Cold War. Decolonialization saw the emergence of what Jackson has called ‘quasi-states’.12 States were built on the foundations of colonial territories that had not always had some pre-colonial experience of statehood and where there was often a mixture of ethnic groups, with significant diasporas in neighbouring new states. These states were supported as sovereign entities by external powers and international convention, rather than by their own qualities and institutions, and did not develop their infrastructures and institutions as a result.13 The bulk of these quasi-states emerged in Africa in the immediate post-Second World War period, but arguably they have been joined by some of the post-Soviet and post-Yugoslav states since the late 1980s.14 These quasi-states differed from many previous examples of weak statehood because their origins and own failings made them less organic and weaker than their predecessors. They also had the misfortune to be competing with states that were strong due to infrastructural power. As a result of all these factors many of the quasi-states that emerged during decolonialization soon displayed many of the characteristics of

6 Neil Robinson weak. A great number went beyond weakness to develop traits of what have subsequently been termed failed or collapsed states. There is an extensive debate in the literature as to what constitutes state failure or collapse and the relative importance of conflict to the definition of a failed state.15 Much of this debate is generated by the problems of explaining state failure – what comes first, weakness (failure to deliver public goods) that produces civil conflict, or civil conflict that generates weakness? – and of seeing the moment at which either weakness or conflict are sufficient quantitatively to cause a qualitative shift in the nature of the state to failure or collapse. It is also debatable whether failure need be total in that it might occur within a part or whole of a state’s territory, and what the gradations of failure according to its geographic spread across a state’s territory might be.16 At the extreme end of the spectrum of failure – collapse – the outcome in terms of the character of the state is fairly clear. A collapsed state is a ‘rare and extreme version of a failed state’ where ‘the structure, authority (legitimate power), law, and political order have fallen apart and must be reconstituted in some form, old or new’.17 However, the distinction between a weak and failed state generally is not so clear. The route to collapse is thus also not clear. A failed state, Rotberg argues, is ‘tense, deeply conflicted, dangerous, and contested bitterly by warring factions’. It cannot control its borders and the characteristics of a weak state are magnified as a failed state exhibits extreme patterns of predation by political authorities and elites, decaying infrastructures and regression rather than economic and civil development.18 This, however, is problematic. It argues that the difference between a weak and a failed state is that some power centre exercises control over predation in a weak state so that the damage done is more moderate and as a result less likely to lead to collapse. This is a slim distinction to make. The difference between a weak and a failed state can be eroded by time in practice; the developmental implications of long-term ‘controlled’ predation in a weak state can be as severe as the short-term developmental implications of predation in a failed state (as in Zimbabwe). Moreover, weak states where they are authoritarian (as most are), or have only rudimentary democracy, can lapse quickly from managed to unmanaged elite conflict since they often do not have fully institutionalized and legitimate succession processes. A challenge to a leader or the death of a leader can move a weak state from controlled to uncontrolled predation, quickly (as seems to be happening in Kyrgyzstan).19 The distinction between weak and failed states it is not, therefore, a hard and fast one. Since this is the case a weak state is a form of failed state – they are often described as being on a continuum – at

State-building and international politics 7 least incipiently. With the line between the two blurred the need for intervention in a weak state is potentially and logically as great as the need to intervene in a failed one if the object of state-building is global security: not to intervene runs the risk that the moment at which weakness becomes failure is reached unchecked and with global security consequences, especially since that moment might be promoted by anyone of a number of undetermined and hence unseen factors. Iraq is a case in point. It was a weak state that did not deliver public goods to its citizens in many important respects, it was not governed by the rule of law, its leaders were predatory and it had some problems managing its territory because of Kurdish revolt in the north of the country. However, it was not a failed state in that the same way as Somalia or Liberia: the militias that terrorized the Iraqi people were licensed by the state and were guarantors of its monopoly over coercion, rather than competitors for that monopoly. Yet Iraq was deemed a global security threat by the US and the ‘coalition of the willing’ because of its weapons ‘programme’, its instability and its lack of legality and respect for human rights. Absent weapons of mass destruction from this equation for some other security problem and intervention in any weak state becomes possible. A second point to note is that since weak and failed states are alike in so many respects it is hard to distinguish the policy response from one to the other outside of military intervention being an absolute necessity in a failed/collapsed state as a prelude to state-building. Once the military situation has been solved in a failed state, state-building will involve tackling the same range of problems in a failed and weak state. Indeed, the very act of military intervention in a failed or a collapsed state, if it is successful, turns it into a weak one since it resolves the question of who has a monopoly over coercion – that lies with the intervening powers or force – and what we are left with is a weak state with a fragmented elite incapable of forming a government. The weak state ‘becomes’ a problem Ideas about state weakness etc. are thus very problematic as analytical categories and as guides to action; they could be taken to indicate a need for broad-based and common action across a wide range of states from outside and could be (indeed have been) invoked independently of total breakdown of order. These problems were not, however, apparent or acted on as they first emerged in the developing world after decolonialization. Although many post-colonial states showed signs of failure or collapse they did not fully develop as failed or

8 Neil Robinson collapsed states because of their quasi-state nature. The Cold War system preserved weak states as simply weak states because the cost of violence breaking out within them was potentially too high for the competing blocs in the Cold War to bear. Moving from state weakness to breakdown and reconstruction threatened the balance of power between the US and the USSR and posed the danger of drawing their local proxies, and hence them, into conflict. Moreover, each side stabilized regimes in their client quasi-states by providing the military and economic aid. This had several outcomes. It relieved weak states of the pressure of state development.20 Quasi-states recognized externally and armed through Cold War competition did not have to develop state power in order to provide for their sovereignty. Second, officeholders in weak states had resources to stave of the movement from weakness to failure and collapse given to them from outside. Arms deterred the development of any ‘will’ to challenge the state and economic largesse in the form of redistributed aid persuaded against it. The result was what Reno has called ‘shadow states’, where personal rule by a strongman existed underneath the cover of de jure sovereignty generated by external recognition.21 The shadow states of the post-colonial, Cold War period could not, however, endure beyond it. As the Cold War drew to a close many developed more fully along the weakness/failure/collapse continuum. The reason for this was that the costs of violence in the developing world became less for advanced industrial nations around the end of the Cold War,22 whilst the pay-off of violence increased in some parts of the developing world as resources became either scarcer or harder to access. The cause of this was not simply the end of Cold War funds to US or Soviet proxies. The climax of the Cold War did not always end economic aid flowing to parts of the developing world. However, it did overlap with changes in the way aid was delivered and consequently used. Structural adjustment programmes and aid conditionality reshaped the way that assistance was administered, weakened rather than strengthened reform and narrowed the basis of economic decision making. In the process it allowed patrimonial rulers increased power over resource distribution at the same time that they diminished spending on welfare.23 This changed the terms on which economic resources could be accessed and their comparative scarcity made violence more attractive for some groups. It also meant that some leaders of shadow states did not have the resources to maintain their personal rule any longer except for what they spent on security.24 The end of the Cold War thus coincided with, and in part caused, crises in weak states; in turn, they could not adapt to resolve these

State-building and international politics 9 crises because of their weakness. The period around the fall of the USSR and the end of the Cold War was marked by developing state failure to some degree (including collapse) across the globe – in (in no order) Somalia, Liberia, Haiti, Yugoslavia, Ethiopia/Eritrea, Rwanda, Zaire, Afghanistan, Moldova, Sierra Leone, Georgia, Sudan, Burundi and Tajikistan – with several other states exhibiting some increased degree of weakness and in some cases signs of incipient failure (Indonesia, Zimbabwe, Columbia, Russia – at least in Chechnya, Uganda and the other states of Central Asia).25 This growing number of cases does not in and of itself fully explain why state-building became an issue on the international political agenda. The response to state failure could have been to alleviate the worst of humanitarian suffering and to keep warring parties apart where necessary. Such a minimalist solution to the problems that emerged around the end of the Cold War was, however, made less attractive by three things. The first we have already alluded to: the very categories of weakness, failure and collapse are so indistinct that they make intervention more possible once state breakdown is recognized as a security problem. This recognition followed hard on the heels of the end of the Cold War.26 The second factor was that the opportunity for international intervention expanded at the end of the Cold War since ideological and politico-strategic logjams preventing intervention were removed with the USSR’s collapse.27 State weakness and failure thus became more prominent and were ripe for action at the same time that action became possible. The third factor that made state-building an increasingly important issue was that the problem of state weakness/failure appeared to be intractable without outside interference as the Cold War ended. This was because of a perceived general ‘crisis of the state’ under conditions of globalization. Globalization is supposed to cause a crisis of the state because, in different accounts, it limits viable policy options, shifts transnational activity from state level to supra- and sub-state levels, and thus constrains state activity, its political centrality and responsibility for welfare and security and its ability to appropriate and direct resources.28 This ‘crisis’ is experienced differently across the globe and may not even be a crisis in certain states – particularly the wealthy – that are able to deal with it coherently and use the relocation of transnational activity to supra- and sub-national levels to their advantage by ridding themselves of certain tasks and burdens and growing their economies.29 Weak states cannot, of course, do this with the same efficiency – if at all – as states that have resources due to their infrastructural power. Further, globalization can exacerbate

10 Neil Robinson the frail territorial cohesion of weak states, allowing some parts of them to become enmeshed in the global economy whilst other parts floundered.30 The effect of this on weak states has been destabilizing and associated with the rise of new forms of conflict that have undermined the state and which are based at least in part on the ability of belligerents to link with the global economy independently of the state.31 Obviously, where they can do this ‘rebel’ regions and factions can sustain conflict. Moreover, the ability of regions and forces to link to the outside world independently of the state meant that the very idea of the state became less important to many people for the first time: the state, under these conditions, was not the source of security, let alone of welfare, because of its sovereign powers; the global economy and the local power structures that it supported were. Globalization thus worked in some cases of weak statehood to undermine aspirations to being a state in the international juridical sense (there was still some new local monopoly over violence exercised by some local strongman). At an extreme this type of state collapse together with its context – globalization – made it appear that not only where some weak states in trouble (which was not new), but that they would not be able to get out of this trouble. This breakdown of states under globalization and the emergence from within states of regions and forces linked to the global economy independently of the state represented to some analysts a breakdown of the state system altogether. It heralded the advent of a ‘neo-medievalism’ in parts of the world, with social forces and subnational units escaping from the Westphalian state system and having the resources to remain outside it.32 A universal solution? Globalization thus worked in two dimensions with regard to state weakness and failure: it facilitated it in parts of the globe by undermining weak sovereignty even further, and at the same time it made it less likely that a state could be reconstructed organically since it both empowered regions and factions that could connect with the global economy to resist the state. This put state-building on the agenda of international politics because it made it a global problem. Where states could not self-regenerate – and who could tell where they could and could not easily and without cost to the rest of the world in security – they would have to be resurrected, or ‘saved’ as Helman and Ratner put it, so that they could once again be able to sustain themselves as members of the international community.33 The question that

State-building and international politics 11 followed from this was, of course, what kind of state should be rebuilt? In the context of globalization, the answer is at least initially simple: one that is able to deal with globalization, namely a state that is flexible and able to draw on social resources to cope with change: in short, some sort of state with infrastructural power. The contours of what this type of state should be were outlined and provided for the emerging state-building agenda by changes in development thinking, which from the early 1990s onwards rediscovered the state. The state that was being rediscovered in this shift in development thinking was not the same as the state that had been promoted by earlier generations of development theorists. Then, the state was central to economic processes since it had to plan development in the face of domestic opposition, compensate for backward social structure and inadequate institutions for modernization and ensure that resources were sufficiently diverted from consumption to industrialization to overcome late development.34 The state that was rediscovered by development thinkers in the 1990s was still a vehicle for controlling certain kinds of activity that inhibit development, but this time development was market centred and the state was to achieve its ends through ‘good governance’ rather than bureaucratic direction.35 The idea of good governance has two senses: a narrow, technical sense of ‘sound development management’ based on ‘a set of rules and institutions (that is a legal framework for development) and a system of public administration which is open, efficient and accountable. Such a system would provide clarity, stability and predictability for the private sector’; and the technical administrative sense plus democratic politics, which is needed to produce accountability.36 Promoting good governance was seen as a way of dealing with the problems that globalization posed for any state – ‘taxes, investment rules must be ever more responsive to the parameters of a globalized world’ as the World Bank’s 1997 Development Report argued – through the promotion of state effectiveness, with the degree to which a state could be made effective dependent on local conditions.37 At first glance both senses of good governance sound admirable. Good governance should destroy some of the things that have made states weak, like predation by their rulers, by establishing constraints on elite behaviour. However, there are some problems with the notion. Good governance is contradictory when placed in its full policy context. It aims to promote stability in which markets can grow and this requires that the state’s authority be accepted as legitimate. This legitimacy is supposed to be produced by openness and accountability. However, at the same

12 Neil Robinson time that legitimacy, openness and accountability are being promoted through good governance the economic policy does not change, but remains neo-liberal. This means that whilst, on the one hand, a contract between state (the good governor) and society is being promoted administratively (at least), on the other hand there is a continuation of policies that weaken the links between state and citizen: welfare cuts through subsidy reduction, privatization, financial deregulation and the consequent expansion of the power of non-accountable market actors over citizens. This has been overlooked in the literature on state-building, which tends to assume that the rediscovery of the state in development thinking was caused by the failure of the ‘Washington Consensus’, the neo-liberal policy mix and its sequencing that were deemed necessary to create growth through economic liberalization and the extension of the power of markets in the 1980s and early 1990s. Fukuyama, for example, claims that the failure of the Washington Consensus led to the ‘development agenda of many IFIs [international financial institutions]’ shifting ‘dramatically in the 1990s’ towards promoting the role of the state.38 In part this is true, but ‘failure of’ in this instance does not equal ‘end of’. What changed with the rediscovery of the state was not thinking about economic ideas, but thinking about the domestic context those ideas should be placed in, what should anchor them administratively. The state needed attention because what was required, as the title of the World Bank’s 2002 Development Report put it, was a ‘building of institutions for markets’.39 How the market was to be built was not rethought in economic policy terms. Critiques from within IFIs that claimed that the Washington Consensus had either underplayed the importance of the state/institutions, or had actually suggested the wrong institutional arrangements out of a desire to press ahead with reform, did not suggest alternatives to economic liberalization based on the same policy mix of budget cuts, financial deregulation etc. that the Consensus had originally promoted.40 The logic of the ‘new Washington Consensus’ (good governance ⫹ economic liberalization) is thus contradictory: it seeks to build legitimacy but at the same time pursues a set of policies that distance the state and the citizen. To compensate for this the idea that good governance should include democratic politics has become more important in the state-building agenda. Democratic governance as a form of good governance has become a balance to the problems that economic policy causes in the short run. In the long run there should be no problem: ‘when’ economic policy works it will pay-off with growth; but whilst waiting for this the citizen should be tied to the

State-building and international politics 13 state by democratic rights. One aspect of this is the tendency of some analysts to talk not just of state-building, but also of ‘nation’ building, the end stage of which is the creation of ‘communities of shared values, traditions, and historical memory’, but which in the short-run involves ‘political relegitimation’.41 Another has been the tendency in the most recent and most ‘full-on’ interventions (Afghanistan and Iraq) to talk of regime change as much as statebuilding and to embark of democracy building (elections, convening of parliaments and government formation) before the state or good governance have been introduced or created. The influence of globalization and the rethinking of the place of the state in development and its nature have together created a very rigid and linear idea of what state-building should involve. State-building is not just the creation of a monopoly over power in a territory; it is also to develop a particular form of authority that will fulfil specific, market-supporting tasks. The blurring of weak/failed/collapsed states means that this vision can be applied anywhere: whatever the problem, democratic state-building is the solution. The problem with this, of course, is that it telescopes state development, democratic development and market development into simultaneous, or near simultaneous, processes. Historical experience seems to indicate that this telescoping is novel. The experience of successful effective state-building is, as Rueschemeyer has argued, an ‘incremental and slow process . . . full of more of less long periods of “stasis”’.42 Even when things appear to move quickly in state-building it is because of long-term developments in some other area such as the economy, society or culture that have reached fruition and facilitated a rapid forward movement. Rueschemeyer notes that there can be rapid formation of effective states, or rapid adaptation of state forms to become more effective, but only where modernity has already taken firm root.43 Although some aspects of modernity (some notion of legal procedure, market economy, educated administrators) that lay the foundations for effective state-development have been laid down across the world in short time compared to the length of time it took to develop them in Europe,44 they are by definition still largely absent in weak states, and are declining in failed and collapsed states which are demodernizing as their infrastructures are worn away by predation. Rapid state formation is thus a result of latent supports for the development of infrastructural power delivering at last. It is not something that we should expect to see happen at the same time as basic social structure and economic development.

14 Neil Robinson Finally, the three processes of state, democratic and market development may well be contradictory when conducted simultaneously. The development of state, democratic and market development have historically been eased by their non-simultaneous development; where the processes run together the risk is that making a decision on one of them may pervert the others.45 Designing state, democratic regime and market at the same time overburdens decision making and exposes something hidden from view when the processes are separate and drawn out: the advantage that can be gained across the different processes by manipulating one of them. Making decisions on the market might detract from the development of democracy since decisions about allocations of property alters the social balance of power; making a decision about the social basis of the state can deform democracy since it influences citizenship and rights to participation and may create exclusion rather than universal citizenship; making decisions about democratic institutions can create anti-market populism or majorities that are not interested in market-supporting institutions such as property rights. In short, not only does building state, democracy and market at the same time run the risk of one or more of the processes corrupting the others, it actually provides incentives for such behaviour and hence for the ruination of all and the perpetuation of state weakness.

State-building, transitional administration and the international community: an outline of the rest of this book One possible answer to the problems of building good governance/ democracy, states and markets simultaneously as dictated by globalization and good governance is that a disinterested party takes charge. This disinterested party should be able to see where the common good of a society lies and have no interest other than the construction of an effective state so that it can avoid the pitfalls of simultaneity. The rest of this book addresses what happens when a ‘disinterested’ party, the international community, in the form of the United Nations (UN) and other international organizations, takes up the cause and tries to build states. In the process, the chapters address not only the outcome for some of the states and peoples where this has been attempted, but also the effect that this effort might have on the international community. The conclusions are not hopeful. The rest of this chapter will introduce the chapter themes. Aidan Hehir will draw some general conclusions briefly in the overall conclusion to the book.

State-building and international politics 15 We start with a chapter by Ralph Wilde. Wilde looks at how international territorial administration is legitimated and distinguished from its predecessor, colonialism. Wilde points out that the analogy between transitional administration under international auspices and colonialism has been invoked more frequently since the invasions of Afghanistan and Iraq. However, the distinction between these cases of transitional administration and others is not always that clear in terms of intention and some practices. This raises the question of how distinctions between ‘illegitimate’, state-generated colonialism and ‘legitimate’ international organization-generated transitional administration are created and whether they are sustainable. Wilde looks at how ideas of legitimacy associated with international organizations and international law support a normative distinction between the two activities. Colonialism as a form of international territorial administration was imposed, exploitative, founded on racist ideas about subject peoples, and self-serving, and damaged the very idea of international territorial administration. Post-colonial forms of international territorial administration are legitimized, Wilde argues, by international legal authority and through the identity of the administering actor. Legitimating transitional administration by international legal authority has two dimensions. First, the establishment of international territorial administration is created through either the decision of an international body, the UN Security Council, and sometimes also with the consent of the sovereign power whose territory is to be administered. The UN Security Council has the authority to impose international administration on a state thanks to its identity as an institution of the organized international community. This is crucial since the consent of states to subject themselves in whole or part to international administration is often made under some form of duress due to either crisis and/or because of foreign military pressure such as the actions of North Atlantic Treaty Organization (NATO) in former Yugoslavia. Second, international legal authority supports international territorial administration since it seeks to implement one or more aspect of international law. What this might be varies from case to case, but includes in particular transfers of territory to state or groups deemed their rightful holders, and improving governance so as to uphold human rights standards. This links post-colonial international administration to international law’s claim to universality, distinguishing it from the subjectivity of colonial forms of administration that imposed a culturally specific set of values, policies and administrative systems – those of the colonizer – on subject peoples (although as we have

16 Neil Robinson pointed out and as later chapters, particularly those by Cunliffe, Chandler, Pupavac and Bain argue, these policies are not unproblematic because of their universality). The role of the UN and the fact that post-colonial international territorial administration claims to be implementing policies in accord with international law create the third factor that Wilde argues legitimizes transitional administration, the identity of the administering actor. Administration under the auspices of the UN is seen as good because of the UN’s non-national character and working towards policy aims that are created by international law. Unlike states the UN is not self-interested and its actions as an international administrator, or organizer and facilitator of such, are charitable rather than exploitative. This, as Wilde goes on to point out, has had an influence on the way that international territorial administration is conceived and administered in the UN. Wilde’s concern in outlining the ways in which transitional administration is legitimated and set apart from its colonial predecessor (and hopefully their baleful legacy in state-building46) is not to assess whether these claims to legitimacy are sustainable, but to consider how international territorial administration has become normatively acceptable according to international policy makers and organizations. He does, however, point out that the claims to legitimacy rest on the ability of international organizations to be independent and impartial, and that this is problematic, and questions whether legitimating international territorial administration by arguing that it is not like its colonial predecessor is enough if, in effect, the results are the same, that is if post-colonial transitional administrations like their predecessors do not actually improve local capacities for government. Moreover, and this is a point that is picked up in later chapters, the legitimacy of international territorial administration might be suspect because of the divided loyalties of international officials (see also the chapters by Richard Caplan and in particular by Jarat Chopra). Where Wilde shows that there may be some problems with the ways in which international territorial administration has been legitimated in comparison to the colonial past, the next three chapters, by Cunliffe, Chandler and Pupavac unpick some of the problems that such forms of administration create or face as they try to develop policies that are sanctioned by the international legal norms that Wilde describes. Cunliffe and Chandler focus on the problems of good governance. Cunliffe does this by looking at what he calls the ‘historical specificity of contemporary state-building projects’, namely where they fit with the development of international relations in the post-Cold War

State-building and international politics 17 period. He does this to get away from the simple description of such efforts as forms of ‘colonialism’, ‘empire’ and ‘imperialism’ that are so promiscuously used in reference to practices of state-building. He argues that the growth of state-building as a practice in contemporary state-building rests on two basic trends that have dominated politics in the post-Cold War era, the politics of emergency and the exercise of power without responsibility. Cunliffe thus presents an alternative view of how developments in the post-Cold War period inform the agenda and the character of state-building. Cunliffe argues that there is a close link between ‘post-Westphalian’ political developments in the 1990s, mostly the rise to prominence of human rights and the international political agenda and a corollary development of ‘new interventionism’ and state-building projects. Cunliffe looks at how these aspects of post-Cold War politics developed before 9/11 and consolidated after it. He argues that although the claim of statebuilding projects undertaken by international actors is to build human rights and democratic governance in fact what occurs is the creation of regimes that are dependent on outside powers. This, he argues, creates a fundamental contradiction. Instead of democratic governance what is produced is low-cost domination of non-sovereign political entities by their international sponsors. This Cunliffe argues is the exercise of a form of power without responsibility. International sponsors of state-building projects set the terms and conditions under which these projects are conducted but at the same time undermine the prerequisites of successful state-building and fail to take direct responsibility for their actions. The chapter by David Chandler picks up on these themes by looking at how current international state-building policy practices relegate political process to a secondary position in state-building. This occurs Chandler argues because of the diminution of state sovereignty and is in marked contrast to the state-building norms that were prevalent in the post-Second World War period of decolonialization. It is debatable whether there is a diminution of state sovereignty or just a new form of weakened state sovereignty since the nature of decolonization, as we have already mentioned following Jackson, created states that were quasi-, semi-sovereign entities, and poorly orientated towards the tasks of building state capacity because of international factors. However, there may, as Cunliffe also argues, be a new basis for diminished sovereignty in the discourses of human rights and good governance. It is towards the latter that Chandler directs particular criticism since he believes that under international direction this takes ‘precedence over the domestic political process of

18 Neil Robinson government’. Chandler builds this argument on earlier observations by Samuel Huntington that the key to the stabilization of a state is domestic consensus as the basis of political community and legitimate government.47 Good governance, Chandler argues, works against the development of this consensus and reverses the general order of statebuilding, positing that political processes are the result of state-building rather than the mechanisms through which social forces work towards a form of state that is acceptable to them. Chandler’s argument reinforces the point made earlier about how changes in the discourses about development have, with the rediscovery of the state as a vehicle for good governance, foreshortened the period in which state development is to take place. Chandler argues that this view on the sequencing of state-building has developed because of the idea that institutionalization must precede democratization in international state-building efforts since democracy is divisive in weak polities. Chandler argues that this amounts to a form of social engineering in which good governance is a technical solution to political problems and conflicts that takes the place of their resolution through native political agency. This, again, is based on a diminution of sovereignty. Those parties that are intervening in conflict – roughly the ‘West’ and international organizations – are seen as above politics, as the bringers of law and the neutral judges arbitrating solutions to parties who have weak claim to sovereign rights. Such technical solutions, however, do not build up connections between the new state and society. Indeed, in a sense such states that might emerge from this type of formative process might, in the short run, not even be states. They are states in a narrow sense that they are juridical entities recognized by the international organizations and their members that have created them and because they may, crudely, possess a monopoly on coercion and control the means to pay for this monopoly. However, they are not an arena of political resolution and have no real ‘life’ to them in the sense, as Gramsci put it, that ‘the life of the state is conceived as a continuous process of formation and superseding of unstable equilibria (on the juridical plane) between the interests of the fundamental group and those of the subordinate groups’.48 The authority and true sovereignty of the international administration supersede such struggles for equilibrium. This of course, means that the states created by international administration are still failures as states since they cannot have great capacity in the sense of having developed infrastructural power. The import of Chandler’s argument is that transitional administration is almost certain to fail in its current form. However, through its

State-building and international politics 19 day-to-day failings it recreates the terms for its own endless existence. By building in failure it cannot be dissolved, but has to be sustained to develop state capacity. Chandler gives some examples from the case of Bosnia as to how this has happened – more examples from this case and others follow in the chapters by Richard Caplan, Aidan Hehir and Jarat Chopra – but adds a warning that it contains a threat to the UN itself since the erosion of sovereignty and creation of a hierarchy of states that follows from these developments weakens the UN’s authority and has moved it away from its Charter. Vanessa Pupavac picks up these themes in the next chapter. Pupavac traces the problems mentioned by Chandler to a different set of factors, concentrating in particular on the challenges to developmental states that have emerged over recent years as a result of changing advocacy from humanitarian NGOs (non-governmental organizations). Pupavac argues that there has been a dual shift in the relationship of developing states and the international system over recent years. First, the advocacy role of humanitarian NGOs has worked with international economic policies to weaken the states in the developing world. NGOs have abandoned state-led national development, and in particular drives for industrialization, in favour of creating sustainable development and the empowerment of individuals. This new agenda and its focus on human security demonizes the state because the state is seen as failing the individual in the developing world and often it is the state that actually violates individuals rights. This new NGO agenda, Pupavac argues, has led to the abandonment of claims to equality between states in economic terms and has weakened the position of developing states within the international system. Parallel to this there has been an increase in the advocacy of military intervention by NGOs so that they have in effect supported the challenge to the sovereign equality of states that has been a feature of the post-Cold War world. The first source of these changes is the end of the Cold War itself. Cold War competition fostered national-development projects in the developing world to some extent since ideological competition between the capitalist and state-socialist camps led them to promote, and to a degree fund, distinct models of economic development. The collapse of the bipolar order did not lead to the triumph of one model of development, but to an international order concerned with crisis management. Development issues thus declined in importance on the agenda of some parts of the international community. Where they did remain in view they did so in a particular, and Pupavac argues, unhelpful fashion. The overall effect of these changes has been that state weakness has been addressed only in

20 Neil Robinson certain limited dimensions, particularly as an issue of corruption or bad governance, which fit with the human security agenda. This has helped to make the issue of human insecurity in the developing world a moral problem against which developed states can measure themselves. The results of this measurement can then be used as justification for intervention in the developing world. Claims to the sovereign equality of states cannot stand against this especially since the advocates of the human security agenda include humanitarian NGOs. It has allowed for the interventions – and one might argue noninterventions where problems are deemed too intractable or in someone else’s backyard – by developed powers that are akin to a form of liberal imperialism and thus has relegitimized international inequality. In different ways, the chapters by Cunliffe, Chandler and Pupavac address at a general level the dangers that state-building might pose for the legitimacy of the international order, and this legitimacy, as Wilde argues in the second chapter is crucial for intervention and transitional administration. The chapters by Caplan, Hehir and Chopra look at three cases of transitional administration and the ways in which some of the problems of state-building that we can identify at a general level have played themselves out. Since they are case studies much of the devil is in the detail and they defy simple summary. However, collectively they point to several things. First, each shows that there is a minimal amount of accountability by transitional administrations to the people that they govern.49 Caplan shows that in Bosnia-Herzegovina (BiH) the High Representative and other international bodies are chiefly accountable to the agencies that appoint them. Partly this is because of the nature of the beast; externally created state-building agencies are there to do a job so to speak rather than to be representative institutions, partly it is because of the claim that such bodies make to emergency powers to deal with dangerous conditions, powers that enable them to ride over local concerns in the ‘greater’ interest of long-term peace and stability. The mechanisms for accountability intrinsic to the bodies that share responsibility for state-building in BiH are inward looking (i.e. concerned with justification of activities to their home institutions) or are inaccessible to local people. Mechanisms for creating accountability that are extrinsic to transitional administration are weak or lacking: local media is underdeveloped, international media is inaccessible or otherwise engaged; there is no independent ombudsperson to whom BiH citizens can appeal; their own courts have limited jurisdiction over employees of transitional authorities and NGOs that monitor the transitional authority are mostly of foreign origin.

State-building and international politics 21 Hehir highlights the lack of accountability of transitional authority in Kosovo differently, by arguing that one of the chief problems that the area faces is the inability of the transitional authority to deal with the issue that is most pressing to Kosovars of all ethnicities: the region’s future status with relation to Albania, Serbia or as an independent entity. Instead of dealing with this issue, the UN Interim Administration Mission in Kosovo (UNMIK) has developed an agenda for institutional reform and development of its own despite the fact that such an agenda’s implementation is in many ways dependent on resolution of the region’s status. The distance between UNMIK’s and the local population’s priorities was highlighted by the outbreak of violence in Kosovo in March 2004 that was orchestrated by ethnic Albanians, on whose behalf intervention had originally been planned, and which was directed in part at UNMIK. The events of March 2004 in Kosovo were the clearest case of a breach between a transitional authority and its subjects outside of Afghanistan and Iraq (where peace was never achieved in the first place since the belligerents against whom military intervention was directed in the first place were not defeated) until May 2006 when unrest broke out in East Timor. This unrest was caused by the collapse of the national security forces and divided political loyalties within it, and led to further intervention by Australian and other troops and the resignation of Prime Minister Alkatiri in June 2006.50 These events took place after the completion of the chapter by Chopra, but are not that surprising in light of it. Chopra is even more damning of the failure of the transitional administration to build a relationship to the community it was supposed to serve than Caplan and Hehir. Like Caplan, Chopra argues that part of the failure to develop some form of accountability was a result of emergency powers and the desire to get things done. This he argues was magnified in the case of East Timor by a feeling that power needed to be concentrated in the hands of the administration to insure success after failures in Somalia and Afghanistan. Once again, therefore, a transitional authority was working to its own agenda. In this case, however, working to its own agenda had an additional effect of corrupting administration by fostering what Chopra calls ‘malevolence on the part of international officials’, some of whom worked to exclude Timorese participation in government so that they might use their powers. Although the UN Transitional Administration in East Timor (UNTAET) went through several reorganizations, centralizing and decentralizing administration and reforming its grass-roots it singularly failed to develop a relationship with the National Council of Timorese Resistance (CNRT), the umbrella organization of the

22 Neil Robinson Timorese resistance, and so could not moderate its lack of account ability or root its administration in social consensus. Second, the chapters by Caplan, Hehir and Chopra show how transitional administration might fail as Chandler indicates in his chapter and how this might create the conditions for a long transition. Hehir and Chopra particularly and strongly sketch this theme out in their chapters. As has already been noted, in Kosovo, UNMIK has failed to resolve the basic problem of the region’s final status and has instead set its own developmental goals. Whilst these are not unimportant, failure to meet them in their first iteration did not lead to UNMIK or its sponsors getting back to basics. Instead the goals were changed and the fundamental question of the region’s status was subsumed to them. Overtime, the goal has become to link Kosovo to Europe and have it as a part of a wider Balkan integration into European structures and to resolve the question of status as a corollary to these developments. This sets a high threshold of state development in the region and in neighbouring states before the issue of Kosovo’s status is dealt with finally. Hehir argues that by changing the goalposts transitional administration in Kosovo can be termed a success even though it has not actually addressed the region’s fundamental problem – its relationship with its neighbours. Arguably, this works most to the advantage of international organizations since they can argue that they have not failed in what many hailed as an important test case of new forms of intervention. For Chopra failure in East Timor has come because the UN has failed to develop the rule of law and means of conflict resolution, instead enforcing a one-sided settlement amongst local political actors. As a result, East Timor is left to rely more or less on the goodwill of its people in the face of unresolved problems and injustices if it is to avoid conflict over the longer term. This leads him to question whether East Timor might not have been better off without a transitional administration. The tendency in the wake of conflict is for some state form to emerge from under the rubble and all that the transitional administration in East Timor might at best have done is delayed organic state-building and at worst it might have deformed such organic state-building so that its outcomes will be much more sub-optimal for the Timorese than would otherwise have been the case. Finally, we can make one observation from the three cases presented by Caplan, Hehir and Chopra. This is that there is no real common model of how transitional administration for state-building should take place despite the rhetorical similarity in justifications for it and the common goals that it is supposed to achieve in terms of

State-building and international politics 23 good governance and human security. At one level this might be a good thing since it could facilitate flexibility and responsiveness to local conditions that might ameliorate some of the negative effects of externally imposed state-building projects. However, it can also cause problems. As a comparison of the three cases shows, first, flexibility is less likely than mission creep and an expansion of the power of the transitional authority is the most likely outcome of a piecemeal approach to setting up state-building operations. Second, there is a difference between flexibility towards local conditions – who to include in consultations between transitional authority workers and local interests should be variable – and flexibility in standards of accountability to local populations and to international sponsors. It might be expected that both subject peoples and the international community would be better served by some common high standard of accountability. Chopra’s argument that what is needed now is a concept of ‘participatory intervention’ would seem to support this observation. The final substantive chapter in the book – before Aidan Hehir’s conclusion – is a very different creature to what goes before it. William Bain’s chapter returns to some of the general questions with which we began. Bain’s approach is, however, very different to the other general chapters in this book. Where they call for changes to the state-building approach by questioning contemporary approaches and include calls like Pupavac’s for a return to universal values around which development can take place, Bain provides a critique of the whole enterprise of international administration that rejects universalism. Legitimating state-building through reference to the UN or such things as human rights is not sufficient, he argues, because the whole enterprise might be morally objectionable; it is not good enough that transitional administration is claimed for the good. Bain doubts that there is a good way to intervene and create state-building administrations and that we can find such a way by extrapolation from any single case or even from the collection of such. Looking at transitional administration not for what it supposed to do, but as what he calls a ‘mode of conduct’, Bain argues that transitional administration is an empty category since it conflates and conjoins notions of ‘contract’ and ‘trust’. Very (very) crudely, contract implies consenting parties and mutual obligation; trust implies no such mutual obligation or reciprocal recognition of rights, but involves one party creating a second as a trustee for the benefit of a third party that is incapable of entering into a contract because of some incapacity on its part. In the case of international administration, the first party is

24 Neil Robinson international society, the trustee the transitional administration and the beneficiary is the territory and peoples that are to be administered. The confusion of the two terms in the case of territorial administration makes them impossible to judge. For example, Bain argues, it makes no sense to hold transitional administrations as failures because of their lack of accountability since they are trusts (and hence cannot be accountable to their beneficiaries), not contractual relations between responsible parties. But we do so – and so do most of our other chapters – since transitional administrations are also contracted to create such things as good governance and that implies some form of accountability. One retort to this would be that if we (as the non-beneficiaries of a trust, the commissioning party) invest a trustee with power to do something then we have a right to hold the trustee to account for its actions in achieving the goal we commissioned it to achieve. In other words, if transitional administrations are trusts they should be accountable to the states and international organizations that form them for some of their actions (although then, as other chapters point out, these might be incoherent and unattainable, and, moreover, as Bain and others have pointed out elsewhere, trustees are less accountable today than they have been historically).51 But Bain’s argument goes further than this critique to develop what some might call a liberal conservative argument against state-building forms of international territorial administration. This supports his argument based on the trust/contract distinction, and indeed in his argument runs parallel to it so that my separation of the two strands of argument is a disservice to both, albeit for the sake of simplification. The thrust of this liberal conservative argument is that liberty, in this case the freedom of societies to make choices within the bounds of their own self-determined traditions and norms, is more important and a better basis for their organization than the imposition of ideals about behaviour and governance that are imposed by an external power, no matter how well meaning. Personally, I am not sure that I agree with this instinctively or for all the possible ways that intervention could happen (as opposed to ways in which it has actually happened). However, it is an argument grounded in a considered reading of political philosophy that has to be addressed if in the long run there is to be an adequate legitimation of state-building as a form of intervention and territorial administration, and if some of the practical problems and contemporary contradictions that other chapters highlight are to be addressed in systematically. Bain’s chapter, therefore, is a very challenging argument to be confronted as we progress to think

State-building and international politics 25 more about state-building as a practice of international politics. And there is a lot of thinking still to be done.

Notes 1 See the chapter by Cunliffe for a more extensive treatment of the conventional wisdom’s articulation by politicians. Further record of changing perspectives on state-building before and after 9/11 can be found in Yannis, A., ‘State collapse and its implications for peace-building and reconstruction’, Development and Change, vol. 33, no. 5, 2002, pp. 817–35; Fukuyama, F., ‘Nation-building and the failure of institutional memory’ and Ekbladh, D. ‘From consensus to crisis: the postwar career of nation-building’, both in Fukuyama, F. (ed.), Nation-building. Beyond Afghanistan and Iraq, Baltimore, MD: Johns Hopkins University Press, 2006. 2 For example, at the end of the 1990s all but two of the twenty-seven major conflicts in the world recorded in a study for the World Bank took the form of civil wars. See Collier, P., ‘Economic causes of civil conflict and their implications for policy’, World Bank, 2000, available at http:// www.worldbank.org/research/conflict/papers/civilconflict.pdf 3 ICISS, The Responsibility to Protect, Ottawa: International Development Research Centre, December 2001, available at www.iciss.gc.ca 4 The terms international territorial administration (sometimes abbreviated to ITA) and transitional administration are both used in this book, although strictly speaking the former is a broader term that incorporates forms of administration that are not imagined by their creators as impermanent (colonialism would be a case in point). 5 For an alternative review of many of the ideas and concepts discussed later see Heilbrun, J., ‘Paying the price of failure: reconstructing failed and collapsed states in Africa and Central Asia’, Perspectives on Politics, vol. 4, no. 1, 2006, pp. 135–50. 6 Migdal, J., Strong Societies and Weak States. State-society Relations and State Capabilities in the Third World, Princeton, NJ: Princeton University Press, 1988, p. 4. 7 Mann, M., ‘The autonomous power of the state’, in Mann, M. (ed.), States, War and Capitalism. Essays in Political Sociology, Oxford: Blackwell, 1988. 8 Mann, M., The Sources of Social Power. A History of Power from the Beginning to AD 1760. Volume 1, Cambridge: Cambridge University Press, chapter 14. 9 Olson, M., Power and Prosperity. Outgrowing Communist and Capitalist Dictatorships, New York: Basic Books, especially pp. 6–12. 10 For a longer discussion of the logic of this see Geddes, B., Politician’s Dilemma. Building State Capacity in Latin America, Berkeley, CA: University of California Press, 1994. 11 An example of this type of organic weak state would be the Tsarist empire. For a large part of its history it was organic in the sense that many of its subject people, whilst not ethnically Russian, were attached to it by shared religious outlook (Orthodox Christianity), and had no alternative sense of themselves as Ukrainian or Belorussian because there was no

26 Neil Robinson

12 13

14

15

16

17

18

nationalist-statist project to which they could easily attach themselves because of the absence of mechanisms for developing such a project (a strong nationalist intelligentsia, mechanisms for mobilizing ethnicity, a literate populace ready to receive nationalist ideas etc.). Jackson, R.H., Quasi-States: Sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1990. See, inter alia, Mayall, J., ‘The legacy of colonialism’, in Chesterman, S., Ignatieff, M. and Thakur, R. (eds), Making states work. State failure and the crisis of governance, Tokyo: United Nations University Press, 2005. For a general discussion of the issues in Africa see Meredith, M., The State of Africa. A history of fifty years of independence, London: Free Press, 2005. We should be careful, however, to distinguish cases of success and failure in post-colonial states, which in part can be traced back to the form taken by colonialism. See, Lange, M., ‘British colonial state legacies and development trajectories: a statistical analysis of direct and indirect rule’, in Lange, M. and Rueschemeyer, D. (eds), States and Development. Historical Antecedents of Stagnation and Advance, Basingstoke: Palgrave Macmillan, 2005. Beissinger, M.R. and Young, C., ‘Convergence to crisis: pre-independence state legacies and post-independence state breakdown in Africa and Eurasia’, in Beissinger, M.R. and Young, C. (eds), Beyond State Crisis? Postcolonial Africa and Post-Soviet Eurasia in Comparative Perspective, Washington, DC: Woodrow Wilson Center Press, 2002. Baseline definitions generally equate failure with either an inability to maintain the provision of public goods to society so that there is no social contract between state and people or with a challenge to the state’s monopoly over coercion on its claimed territory. See von Einsiedel, S., ‘Policy responses to state failure’, in Chesterman, et al., Making states work, pp. 15–16 for discussion and relation of these definitions to basic theories of the state. These definitions cut across what we have already described as state weakness and, in the case of the challenges to the state’s monopoly over coercion, could be used to describe states that are generally viewed as strong: Italy, for example, in the anni di piombo (years of lead), the UK during the conflict in Northern Ireland or Spain during the conflict in the Basque country all saw the state’s monopoly over coercion challenged by armed groups but were a long way from failure. Gros, J.G., ‘Towards a taxonomy of failed states in the New World Order: Decaying Somalia, Liberia, Rwanda and Haiti’, Third World Quarterly, vol. 37, no. 3, 1996, pp. 456–61. Rotberg, R.I., ‘The failure and collapse of nation-states: breakdown, prevention and repair’, in Rotberg, R.I. (ed.), When States Fail. Causes and Consequences, Princeton: Princeton University Press, 2004 argues that states can lose control of a part of their territory and merely be weak, rather than failed, and gives examples. Rotberg, R.I., ‘The failure and collapse of nation-states: break down, prevention and repair’, op.cit., p. 9; Zartman, I.W., ‘Introduction: posing the problem of state collapse’, in Zartman, I.W. (ed.), Collapsed States. The Disintegration and Restoration of Legitimate Authority, Boulder, CO: Lynne Reiner, 1995, p. 1. Rotberg, R.I., ‘Failed states, collapsed states, weak states: causes and indicators’, in Rotberg, R.I. (ed.), State Failure and State Weakness in a Time of Terror, Cambridge, MA, Washington, DC: World Peace Foundation, Brookings Institution Press, 2003, pp. 5–10.

State-building and international politics 27 19 International Crisis Group, Kyrgyzstan: A Faltering State, Asia Report No. 109, 2005. 20 Jackson, Quasi-States. For a short explication of these points see Bates, R.H. Prosperity and Violence. The Political Economy of Development, New York: W.W. Norton, chapters 4 and 5. 21 Reno, W., Warlord Politics and African States, Boulder, CO: Lynne Reinner. See also his ‘Mafiya troubles, warlord crises’, in Beissinger and Young (eds), Beyond State Crisis? for an argument about the applicability of the concept beyond Africa. 22 Bates, Prosperity and Violence, p. 97. 23 van de Walle, N., ‘The economic correlates of state failure’, in Rotberg, R.I (ed.), When States Fail. Causes and Consequences, Princeton, NJ: Princeton University Press, 2001. van de Walle’s argument is summarized in Fukuyama, F., State-building. Governance and World Order in the Twenty-first Century, London: Profile Books, 2004, pp. 21–2. 24 Ayoob, M., ‘State-making, state-breaking and state failure: explaining the roots of Third World insecurity’, in Van de Goor, L., Rupeshinge, K. and Sciarone, P. (eds), Between Development and Destruction: An Enquiry into the Causes of Conflict in Post-colonial States, Basingstoke: Macmillan. 25 For an alternate list see the maps in Rotberg, ‘The failure and collapse of nation-states’, pp. 46–9; also the case studies in Zartman, Collapsed States, p. 5; Rotberg, State Failure and State Weakness; Chesterman, et al. Making states work. 26 See, for example, Helman, G. and Ratner, S., ‘Saving failed states’, Foreign Policy, no. 89, pp. 3–20. 27 Yannis, ‘State collapse’, p. 826. 28 For an overview of the issues around state and globalization see Clark, I., Globalization and International Relations Theory, Cambridge: Cambridge University Press, 1999. 29 Garret, G., Partisan Politics in the Global Economy, Cambridge: Cambridge University Press, 1998. 30 Hoogvelt, A., Globalization and the Postcolonial World. The New Political Economy of Development, Basingstoke: Macmillan, 1997. For some examples see Harrison, G., ‘Sub-Saharan Africa’, in Payne, A. (ed.), The New Regional Politics of Development, Basingstoke: Palgrave Macmillan, 2004, pp. 240–1. 31 Cf. Kaldor, M., New and Old Wars: Organized Violence in a Global Era, Cambridge: Polity, 1998; Duffield, M., Global Governance and the New Wars: The Merging of Development and Security, London: Zed, 2001; Munkler, H., The New Wars, Cambridge: Polity, 2004. 32 For a review of the literature on ‘neo-medievalism’ see Cerny, P., ‘Neomedievalism, civil war and the new security dilemma: globalisation as a durable disorder’, Civil Wars, vol. 1, no. 1, 1998, pp. 36–64. 33 Helman and Ratner, ‘Saving failed states’. 34 Gerschenkron, A., Economic Backwardness in Historical Perspective. A book of essays, Cambridge, MA: Belknap Press, 1962. 35 For the history of the concept of good governance see ‘The emergence of the “good government” agenda: some milestones’, IDS Bulletin, 1993, vol. 24, no. 1, pp. 7–8; Leftwich, A., ‘Governance, democracy and development in the Third World’, Third World Quarterly, vol. 14, no. 3, 1993,

28 Neil Robinson

36 37 38 39 40

41 42 43 44 45

46 47 48 49 50

51

pp. 605–24 and ‘Governance, the state and the politics of development’, Development and Change, vol. 25, no. 2, 1994, pp. 363–86. Leftwich, A., ‘On the primacy of politics in development’, in Leftwich, A. (ed.), Democracy and Development, Cambridge: Polity, 1996, pp. 15–16. World Bank, The State in a Changing World. Development Report 1997, New York and Oxford: World Bank and Oxford University Press, 1997. Fukuyama, State-building, pp. 19–23. World Bank, Building Institution for Markets. World Development Report 2002, New York and Oxford: World Bank and Oxford University Press, 2002. See, for example, Hellman, J., ‘Winners take all. The politics of partial reform in postcommunist transitions’, World Politics, vol. 50, no. 2, 1998, pp. 203–34. Hellman’s critique of initial reform design in postcommunist states influenced the European Bank for Reconstruction and Development’s rethink of the relationship of institutions to economic liberalization (see its Transition Report 1999. Ten years of transition, London: European Bank for Reconstruction and Development, 1999, especially part II), but in neither of these texts is there any questioning of the economic policies of the Washington Consensus. Fukuyama, ‘Nation-building’, pp. 3, 4. Rueschemeyer, D., ‘Building states – inherently a long-term process? An argument from theory’, in Lange and Rueschemeyer, States and Development. Ibid., pp. 158–61. Ertman, T., ‘Building state – inherently a long-term process? An argument from comparative history’, in Lange and Rueschemeyer, States and Development, p. 181. For a more extensive explanation of these points see the text from which they are drawn: Offe, C., ‘Capitalism by democratic design? Democratic theory facing the triple transition in East Central Europe’, in Offe, C. (ed.), Varieties of Transition. The East European and East German Experience, Cambridge: Polity, 1996, especially pp. 32–5. See Mayall, ‘The legacy of colonialism’. Huntington, S., Political Order in Changing Societies, New Haven, CT: Yale University Press, 1968. Gramsci, A., ‘Analysis of situations: relations of force’ [from Prison Notebooks], in Forgacs, D. (ed.), A Gramsci Reader, London: Lawrence and Wishart, 1988, pp. 205–06. A point that is also made in Chesterman, S. You, the People. The United Nations, Transitional Administration and State-building, Oxford: Oxford University Press, 2004. See various articles in The Guardian, 31 May, 2 June, 8 June 2006. For analysis directly blaming the violence in East Timor on the failure of the UN sponsored state-building process see Polman, L. ‘Trappings of state’, The Guardian, 31 May 2006. Bain, W., Between Anarchy and Society. Trusteeship and the Obligations of Power, Oxford, Oxford University Press, 2003; Chesterman, You, the People, op.cit.

2

Colonialism redux? Territorial administration by international organizations, colonial echoes and the legitimacy of the ‘international’ Ralph Wilde1 [I]n our time, direct colonialism has largely ended. (Edward Said)2

[M]ost Bosnians view their country as an international protectorate. (International Crisis Group)3

Introduction Over the course of the unipolar decade and a half since the end of the Cold War, the term ‘empire’ returned to vogue amongst mainstream commentators.4 It was only with the fall of Saddam Hussein and the introduction of the Coalition Provisional Authority (CPA) administration in Iraq led by US Ambassador Paul Bremer, however, that the cognate term ‘colonialism’ resurfaced in mainstream discourse.5 To be sure, colonialism had never gone away in some places, with those territories that chose to remain part of the administering power and the continued denial of Palestinian and Sahrawi self-determination,6 but Iraq perhaps marked the first time in the unipolar era that something new was criticized in mainstream commentary via direct colonial comparisons: the imperial hyperpower had shifted into an activity with echoes of post-Renaissance European colonialism, not only toppling a local government, but also administering the territory and attempting to profoundly reorient its economic, political and cultural system. In this narrative, as a ‘new’ form of colonialism Iraq was aberrant, a sole exception to the view, as reflected in the 1993 quote from Edward Said provided earlier, that as options on the palette of national and international policy, colonies and protectorates are the stuff of history.7

30 Ralph Wilde Yet away from Iraq and other longstanding instances of foreign state occupation, other people in other parts of the world have for some time used the colonial tag to place the legitimacy of their own forms of government into question: people living in territories subject to either partial or plenary administration by international organizations. As the following table demonstrates, this activity, which I term ‘international territorial administration’ (ITA), witnessed an upsurge around the turn of the century with the plenary UN administration projects in Eastern Slavonia, Kosovo and East Timor, and the partial administration conducted by the High Representative in Bosnia and Herzegovina (Table 2.1).8 Language echoing the colonial paradigm is sometimes used to describe current ITA projects. As with the earlier quote relating to Bosnia and Herzegovina, Kosovo is frequently described as a ‘protectorate’;9 the High Representative in Bosnia and Herzegovina is often described as a ‘colonial governor’,10 the UN Administrator in Kosovo a ‘Proconsul’.11 Richard Caplan’s survey of the most recent UN administration projects for the International Institute for Strategic Studies (IISS) was entitled ‘The New Trusteeships?’.12 Such designations are, however, usually made only provocatively, without further examination; the question posed in the IISS report, for example, was not actually addressed in the survey itself; alternatively, they are used axiomatically, assuming a connection between ITA and colonialism by way of a prelude to a detailed analysis of the nature of the powers being exercised in a particular project, without first engaging in a detailed consideration of how and to what extent the colonial analogy holds water. An example of this approach would be a report of the European Stability Initiative (ESI), which invoked the colonial analogy of the British Raj before considering in detail the nature of the High Representative’s powers in Bosnia and Herzegovina.13 The only sustained consideration of the relevance of the colonial analogy to ITA can be found in William Bain’s study of the idea of trusteeship in international society, which considers commonalities between post-Renaissance European colonialism and international territorial administration insofar as the concept of trust is concerned.14 Turning from specialist commentators, the potential relevance of the colonial analogy to contemporary ITA projects has rarely been picked up in a mainstream discourse that, by contrast, frequently described the CPA in Iraq as ‘colonial’.15 One exception to this would be a story in the left-wing UK Guardian newspaper on the

Table 2.1 Chronological list of authorized ITA projects Date

Location

Organization/appointed officials

1920–39 1920–35 1924

The Free City of Danzig The Saar, Germany Memel, Lithuania

1933–4 1960–4 1962–3

Leticia, Colombia The Congo West Irian

1967 1989

South West Africa/ Namibia* Namibia

1991–

Western Sahara*

1991–2

Cambodia

1993

Somalia

1994–6

Mostar, Bosnia and Herzegovina Bosnia and Herzegovina

League and a League Commissioner 䊓 League Governing Commission 䊏 Foreign appointees to the Harbour Board by the League䊓 League Commission 䊏 The UN Operation in the Congo (ONUC) 䊓 The UN Temporary Executive Authority (UNTAE) 䊏 The UN Council for South West Africa/Namibia 䊏 The United Nations Transitional Assistance Group (UNTAG) 䊓 The UN Mission for the Referendum in Western Sahara (MINURSO) 䊓 The UN Transitional Authority in Cambodia (UNTAC) 䊓 The Second United Nations Operation in Somalia (UNOSOM II) 䊓 The European Union Administration of Mostar (EUAM) 䊏 The Office of the High Representative (OHR), the Organization for Security and Cooperation in Europe (OSCE) election mission, and various foreign appointees of international organizations sitting on public bodies 䊓 The UN Inter-agency Humanitarian Programme 䊓 The UN Transitional Authority for Eastern Slavonia (UNTAES) 䊏 OHR Supervisor 䊓

1995–

1996–2003 1996–8 1997– 1999 1999–

1999–2002 Various Various Various

Various

Three ˇ northern Governorates, Iraq Eastern Slavonia, Croatia Brcko, Bosnia and Herzegovina East Timor Kosovo, Federal Republic of Yugoslavia/Serbia and Montenegro East Timor

The UN Mission in East Timor (UNAMET) 䊓 The UN Mission in Kosovo (UNMIK) and the Organization for Security and Cooperation in Europe (OSCE) election mission 䊏 The UN Transitional Authority in East Timor (UNTAET) 䊏 Refugee camps The UN High Commissioner for Refugees (UNHCR) 䊏 Certain poor countries UN material assistance programmes 䊓 Cambodia, Bosnia and International appointees to locally Herzegovina, East situated criminal/human rights/ Timor, Kosovo, Sierra truth-telling tribunals and processes Leone (some a.k.a. ‘hybrid’ tribunals) 䊓 Colonial and Trusteeship UN popular consultation missions 䊓 Territories

Notes 䊏 Plenary administrative authority. 䊓 Partial administrative prerogatives, including the conduct or supervision/control of popular consultations. * Administrative prerogatives authorized but not implemented or only partially implemented.

32 Ralph Wilde previously mentioned ESI report describing the set-up in Bosnia and Herzegovina as the European ‘Raj’ that made a brief splash but was soon forgotten.16 More typical is analysis taking the ITA projects for granted, addressing second order issues concerned with how the High Representative in Bosnia and Herzegovina and the UN Mission Head in Kosovo can do their jobs better. And this is when contemporary projects are even the subject of mainstream attention. In most of the mainstream news media, the current international presence in the Balkans, especially the High Representative in Bosnia and Herzegovina, seems to be invisible. On economic matters, for example, one would think from mainstream commentary that foreign actors exercising direct administrative power to profoundly alter the economic system has in recent times been particular to Iraq, yet in fact it has been a central pillar of the administrative set-up in the Balkans which pre-dates Iraq and continues now after the end of the CPA.17 For commentators who do reference contemporary ITA projects, the typical lack of interest in the potential relevance of the colonial analogy often coexists with a fierce resistance to any comparison between these projects and the colonial CPA in Iraq. To give a parochial example, in the United Kingdom a Cabinet member who resigned soon after the commencement of the Iraq war in 2003, Claire Short, alleged that she had been let down by the Prime Minister on the role given to the United Nations in the postwar occupation.18 When at the time I put to Ms Short that the UN representative in Kosovo was, in terms of the nature of the role being performed, ‘Kosovo’s Paul Bremer’, Ms Short was having none of it.19 Pulling together these discursive strands on the potential relevance of the colonial analogy to international territorial administration, we might say that certain specialist commentators sometimes use the colonial tag in a mostly superficial manner, mainstream discourse either ignores or actively resists the colonial analogy and a broader narrative tells the story that with the exception of Iraq and more longstanding forms of foreign occupation colonialism inhabits a bygone age. No doubt many factors explain the differential normative treatment of state-conducted colonialism and international territorial administration in mainstream discourse. In this chapter I consider one such factor: how ideas of legitimacy associated with international organizations and international law support a normative distinction between the two activities.

Colonialism redux? 33

Normative disassociation The conquest of the earth, which mostly means the taking it away from those who have a different complexion or flatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretence but an idea; and an unselfish belief in the idea – something you can set up, and bow down before, and offer a sacrifice to . . . (Marlow, in Joseph Conrad, Heart of Darkness)20 Despite the provocative statements made by some in relation to relatively recent international territorial administration projects, the equation of the post-colonial ITA missions with the earlier stateconducted manifestations of foreign territorial administration has in practice been resisted at the United Nations. We can explain this, in part, by considering how certain features of the post-colonial international territorial administration projects are presented as normative opposites to the very features of colonialism that led to the repudiation of state-conducted foreign territorial administration. The essence of the colonial critique was that the arrangements in question had been imposed on the local population and therefore were exploitative.21 This imposition had two elements: in the first place, the idea that the local population had not consented to the presence of foreign administration in their territory, either at all (League of Nations Mandates and United Nations Trusteeship territories and certain colonies) or in a meaningful manner (those colonies based on agreements with local representatives);22 in the second place, the idea that the policies forming the basis of administration, such as the civilizing mission, were not universally legitimate, reflecting the particular interests and traditions of the administering authorities but not necessarily those of the local population. Thus ‘alien’ policies were being imposed.23 This dual-level imposition was a racist injustice, and the arrangements were to be terminated unless the local population endorsed them and thereby supposedly normatively transformed them into a consensual state of affairs. Related to this is the cynical presentation of the motives of those states prosecuting colonialism, as reflected in the following remark by Simon Schama: [T]he alienated native rulers were not fools. They knew that the annexations were more often than not driven by British strategic

34 Ralph Wilde and financial interests, rather than by any high-minded commitment to ‘improved’ government.24 Not only, then, were the ‘high-minded’ purposes associated with colonialism (such as improving local capacities for governance) based on racist ideology but as Ashcroft, Griffiths and Tiffin suggest, they were also a sham: ‘colonialism developed an ideology rooted in obfuscatory justification, and its violent and essentially unjust processes became increasingly difficult to perceive behind a liberal smokescreen of civilizing “task” and paternalistic “development” and “aid”’.25 Thus terms like protectorate and ‘Trust territory’ merely masked selfish motivations, serving ‘to justify the continuing process of colonialism as well as to hide the fact that these territories were the displaced sites of the increasingly violent struggles for markets and raw materials by the industrial nations of the West’.26 The use of ITA in the ‘post-colonial’ era suggests that the original absolutist rejection of foreign territorial administration was altered so that this activity could again be introduced if it were considered legitimate, as colonialism was not, as far as the wishes and needs of the local population were concerned. To borrow Marlow’s language, the ‘idea’ of legitimacy that ‘redeems it’ has three elements: first, that the projects have been lawfully authorized; second, that the policies they are used to implement reflect principles of international law and are therefore universally valid; and third, that the projects are conducted by international organizations rather than individual states and are therefore humanitarian rather than exploitative. Each limb of legitimacy will be addressed briefly in turn; the objective is to consider how international territorial administration has become normatively acceptable according to international policy, rather than to consider whether this claim to legitimacy is sustainable.

The first legitimation strategy: international legal authority The first way that the legitimacy of ITA projects has been distinguished normatively from that of their colonial forbears is in the nature of the legal authority provided for them. This authority has been rooted either in the consent of the territorial sovereign, or from Security Council Resolutions passed under Chapter VII of the UN Charter, or both. The latter form of authority became possible as the competence of the Security Council expanded into areas that were hitherto regarded as the exclusive domain of states.27 So legitimacy in terms of legal authority has covered not only ‘consensual’ authority but also Security Council authority exercised under Chapter VII of the

Colonialism redux? 35 UN Charter. Whereas projects resting on the former type of authority distinguish themselves from the ‘imposed’ nature of colonialism through adopting the opposite approach, projects resting on the latter achieve such distinction because of the perceived entitlement of the Security Council, within the bounds of the UN Charter, to render legitimate that which would otherwise be illegitimate in the field of intervention.28 So the projects are again imposed, but this time their normative character is not considered to be degraded because an actor now exists, as was not the case previously, which enjoys the authority to make such impositions by virtue of its identity as an institution of the organized international community. As Henry Richardson has stated in relation to the proposals for international administration in the ‘failed state’ context in particular, the ‘proponents of “failed states” rely heavily on the assumed legitimacy of United Nations organs, such as the Security Council, to mediate such conflicts, and to legitimate actions of intervention that otherwise would be illegal colonialism’.29 The invocation of these two types of legal authority has differed as between the various post-colonial administration projects; one set of projects have rested on consent from the territorial sovereign, in conjunction (with two exceptions) with Security Council authority; a second set have been based solely on Security Council authority. The following analysis is limited to what has been claimed by the international organization in question. Whether or not the powers exercised actually fall within the scope of this claim is beyond the scope of this evaluation. Before turning to a consideration of the three models for legal authority, it is necessary to consider briefly what constitutes valid legal authority in the case of territory with a right of self-determination where international administration is introduced, as in, for example, the Western Sahara and East Timor. How can we understand legitimate consent from the sovereign authority when the territory concerned enjoys an external selfdetermination entitlement, that is, the right to determine its external status, including the right to become an independent state? If the territory forms part of another state (e.g. a colonial territory), then consent from that state is not by itself sufficient; it has to be validated by the population of the territory. If the territory does not form part of any state, then the unit itself should be treated as the ‘sovereign authority’ for the purpose of providing consent, given that it enjoys distinct legal personality akin to the personality of a state in that it is territorially based in character; thus consent from the sovereign authority should be understood in terms of the agreement of the local population of the territory.

36 Ralph Wilde For most of the post-colonial ITA projects, the existing sovereign authority provided its consent to the administrative arrangements: the Congo agreed to the United Nations Operation in the Congo (Opération des Nations Unies au Congo) (ONUC);30 the Netherlands agreed to the United Nations Temporary Executive Authority (UNTAE) in West Irian;31 Cambodia agreed to the United Nations Transitional Authority in Cambodia (UNTAC);32 Bosnia and Herzegovina and/or the relevant sub-state entities agreed to the European Union Administration of Mostar (EUAM) in 199433 and Office of the High Representative (OHR),34 the international appointments to national institutions35 and the Organization for Security and Co-operation in Europe (OSCE) involvement in running elections36 in 1995; Croatia agreed to the UN Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES) in 1995;37 Iraq agreed to the UN Inter-Agency Humanitarian Programme in 1996;38 the then Federal Republic of Yugoslavia (FRY) agreed to UN Interim Administration Mission in Kosovo (UNMIK) in 1999.39 In all these cases apart from West Irian, the states concerned were in a particularly vulnerable position, through internal conflict – for example in Bosnia and Herzegovina – and/or as a result of external coercion – as with the then FRY in 1999 following the North Atlantic Treaty Organization (NATO) bombing campaign. It might be said, then, that although the administration agreements were based on the consent of the local sovereign, this was consent of a largely formal character; due to weakness and/or external pressure, the meaningfulness of consent was compromised and in reality, the projects were imposed. It is notable in this regard that in all these cases except the EUAM authority for the projects is also derived from Security Council Resolutions.40 A detailed exploration of the interplay between the legal authority provided by the consensual instruments, on the one hand, and the Security Council Resolutions, on the other, is beyond the scope of this chapter, but in general terms this dual authority had the normative effect of conceiving projects whose legal basis combines elements of both consent and imposition. Since the latter is a particular form of imposed authority – Security Council Resolutions passed under Chapter VII – that is conceived as politically legitimate, its effect is to provide legitimacy for the projects in the light of the compromised nature of the consent provided by the sovereign authorities. In the second class of projects, covering the United Nations Operation in Somalia (UNOSOM II) and the United Nations Mission in East Timor (UNAMET) and the UN Transitional Administration in

Colonialism redux? 37 East Timor (UNTAET), the arrangements do not enjoy any legitimate consensual authority from the territorial sovereign. The Somalia mission was not based on the consent of the state, but rather exclusively on Security Council authority.41 East Timor was neither part of Portugal or Indonesia at the time that the May Agreements42 providing for a self-determination consultation in 199943 and the plenary UN administration arrangements that began later that year44 were signed by those two states. Although, then, the plenary UN administration arrangements were authorized by these agreements, this cannot be considered authority derived from the sovereign authority with respect to the territory. Rather the Agreements reflected the political need to obtain Indonesian consent, as the (illegally) occupying power, and the legal interest that Portugal had in East Timor as the former administering power, notwithstanding its lack of sovereignty over the territory. In other words, they reflected the need to involve other ‘interested states’, rather than states enjoying sovereignty with respect to the territory. Since UN administration was to follow the self-determination consultation, there was a clear opportunity to derive local consent from the local population in East Timor for the administration arrangements via the consultation. When the Security Council welcomed the outcome, it suggested that such consent had in fact been forthcoming during the consultation; it described the outcome as the East Timorese expressing a ‘clear wish to begin a process of transition under the authority of the United Nations’.45 However, the consultation question itself was concerned exclusively with East Timor’s future status; specifically, it failed to mention either a process of transition or any role for the United Nations.46 It might be said that the East Timorese knew about the content of the May agreements, in particular being aware that if they chose independence that this would involve a temporary period of UN administration. Although this was probably the case as far as the leadership and the élite generally were concerned, it is far from clear that the majority of the local population, many of them being illiterate and living in remote areas cut off from metropolitan Dili, knew of this arrangement. Certainly some of the publicity materials issued by UNAMET referred to some kind of UN role if autonomy within Indonesia was rejected. For example, a UNAMET poster stated that in such circumstances ‘[t]he United Nations will oversee East Timor’s transition’.47 Even for those people who were aware that rejecting autonomy would lead to UN administration, however, one cannot of course consider a rejection of autonomy as necessarily meaning support for

38 Ralph Wilde UN administration. The East Timorese were not given the opportunity to express their view on each arrangement separately; if they favoured independence, they had to ‘agree’ to UN administration into the bargain. Ultimately the eventual status of the territory was of more importance than the question of an interim period of UN administration; it is surely the case, therefore, that in most instances those who may have not wished for the latter would have nonetheless voted in the affirmative because of their support for independence. One cannot, therefore, draw any conclusion either way about local support for UNTAET from the popular consultation. Far from expressing a ‘clear wish’, the East Timorese were not given the opportunity to express their view as to whether or not they agreed to a temporary period of UN administration before independence. It follows that UNTAET in East Timor, like UNAMET in the same territory and UNOSOM II in Somalia enjoyed no legal authority from the territorial sovereign, but claimed legitimacy exclusively through its Security Council mandate passed under Chapter VII.48

The second legitimation strategy: international legal authority International territorial administration projects have been associated with a range of purposes, from attempting enabling transfers of territory (e.g. UNTAES in Eastern Slavonia) to ensuring that governance conforms to certain ‘democratic’ standards (e.g. UNMIK in Kosovo promoting autonomy for the province). The policies associated with the post-colonial missions are set out in Table 2.2. Using ITA to promote these policies can be understood in terms of implementing certain areas of international law, whether territorial settlements included in peace agreements (the arrangements for Eastern Slavonia were brokered as part of the peace process which also led to the Dayton Peace Agreements) or general international human rights law (cf. the right to self-determination in common Article 1 of the two global UN Covenants on Human Rights49). Considering the purposes with which the post-colonial projects have been associated in particular (see Table 2.2 above), these purposes can be regarded as ‘lawful’ in the sense that they are concerned with implementing policies that reflect or are in conformity with principles of international law. The projects promoting territorial outcomes in Eastern Slavonia, Mostar and Bosnia and Herzegovina were lawful in the sense that the particular outcomes involved reflected the legal status of the territories

Colonialism redux? 39 Table 2.2: The use of ITA in the post-colonial context Policy Promoting territorial outcomes Transfer of territory Territorial status Statehood Unified city status Liberal governance Free and fair elections Multi-ethnic politics; internal self-determination Existence of governance Filling governmental vacuum Generally Humanitarian supplies Filling governmental vacuum and institution/capacity building Institution/capacity building

Location West Irian (1963); Eastern Slavonia (1998) Bosnia and Herzegovina (from 1996) Mostar (1994–6) Cambodia (1991); Bosnia and Herzegovina (from 1996) Bosnia and Herzegovina (from 1996); Kosovo (from 1999)

Congo (1960–4), refugee camps Northern Iraq (1996–2003); various poor countries East Timor (1999–2002) Somalia (1991)

concerned: Eastern Slavonia was part of Croatia, Mostar was part of Bosnia and Herzegovina, and Bosnia and Herzegovina was a state. The West Irian project can be considered lawful in the sense that the transfer of territorial control to Indonesia did not run counter to the selfdetermination entitlement of the local population, since, as discussed earlier, this entitlement was of a special character, only becoming an operational principle once Indonesian administration had been introduced. The projects promoting ‘liberal governance’ can be considered lawful in that the areas of governance involved reflected certain areas of human rights law – free and fair elections (Cambodia and Bosnia and Herzegovina) reflecting the right to such elections and multiethnic politics and sub-state autonomy (Bosnia and Herzegovina and Kosovo respectively) reflecting minority rights and the right of internal self-determination. The projects promoting the existence of governance (the Congo, Northern Iraq, aid-distribution programmes in poor countries, East Timor and Somalia) can be considered lawful in the sense that they sought to provide the governmental framework within which human rights generally could be protected and/or to ensure the realization of certain basic economic and social rights through the provision of public support.

40 Ralph Wilde Quite separate from providing an entitlement to be in administrative control, then, international law also provides an underpinning to the ostensible reasons for such control in terms of policies carried out on the ground. Through this, policies are associated with international law’s claim to universality, which can then be invoked in response to a colonial critique that one particular, culturally specific, set of values is being imposed on a population that does not share them.

The third legitimation strategy: identity of administering actor The final way in which international territorial administration is usually distinguished on a normative level from the state-conducted precursors is in the identity of the administering actors involved. The normative character of international organizations, especially the United Nations, is often presented through the positioning of such organizations in contradistinction to states.50 In this Manichean, two-legs-bad four-legsgood vision, states are presented as self-interested and exploitative, and international organizations are considered selfless and humanitarian. Such relational positioning is a powerful aid in distinguishing international territorial administration from colonialism, in that it enables the activity of territorial administration when conducted by international organizations to be disassociated, normatively, from the same activity when performed by states, which would always be vulnerable to suspicions of bad faith and self-serving motivations. There are two interrelated aspects to this idea. In the first place, on a political level the reification of the ‘international’ in the form of international organizations permits the notion of a distinct actor, created by but separate from states. This enables international organizations to be presented as independent from states, as manifestations of the global community rather than tools of individual states. Actions conducted by such actors are ‘public’ in the sense that they are not conducted by an individual member of the international ‘polity’ (a particular state) but rather the polity as a whole. In the second place, on a normative level states and international organizations are set up as binary opposites. Whereas states are suspected of acting for self-serving motives, international organizations are considered selfless, neither representing the interests of particular states,51 nor pursuing any self-interested objectives other than what is for the benefit of the ‘international community’ as a whole.52

Colonialism redux? 41 We see this, for example, in the use of ITA to address a dispute over territorial sovereignty, where the normative identity of the international organization as ‘neutral’ as between the interests of disputing states is exploited as a mechanism for settling a territorial dispute. Equally, the suspicion of self-interest on the part of states leads to a fear that states’ actions outside their territory will be exploitative of the population in those territories. International organizations, by contrast, are presented as intrinsically humanitarian and benign. Such projects are not, therefore, acts of ‘conquest’, as in Marlow’s description of colonialism, but rather acts of charity. This portrayal of the normative difference between international organizations and individual states, however simplistic and potentially problematic, is of significant purchase in understanding how the international organization projects are compared with state-conducted colonial arrangements. Just as territorial administration by foreign states was presented as essentially unjust in the era of decolonization, so this activity performed by international organizations is sometimes considered essentially legitimate because it is conducted by international organizations. At the very least, the presumption is reversed; what was presumed to be illegitimate is now presumed to be legitimate.

Overview of normative disassociation The three features of the post-colonial international territorial administration projects identified above, concerning legal authority, the connection between the policies promoted and norms of international law, and the identity of the administering actors, are all invoked as the basis for distinguishing these projects on a normative level from earlier administration arrangements involving individual states. The ITA projects are not colonial because they rest on lawful authority, as colonialism did not; because they are implementing universally validated policies, rather than the particular agenda of certain states, as in colonialism; and, finally, because they are conducted by ‘humanitarian’ international organizations rather than individual states whose motives and actions are always to be questioned. The desire to disassociate international territorial administration from the UN Trusteeship System in particular can be seen, for example, in the reluctance to revive the Trusteeship Council as a mechanism for supervising the conduct of administration in the plenary ITA projects. The Trusteeship System covered not only the former colonies of the defeated powers and the remaining Mandated territories; it was also

42 Ralph Wilde open to any other territories ‘voluntarily placed under the system by States responsible for their administration’.53 Moreover, under the system the administering authority could be individual states or the United Nations itself.54 East Timor fitted into the category of a Trust territory: it had been detached from what was in effect a colonial power; it enjoyed a right of self-determination; it was not under the sovereignty of any other actor but rather enjoyed distinct legal personality by virtue of its self-determination entitlement; and the local population was deemed incapable of self-administration in the short term following Indonesian withdrawal. The state ‘responsible’ for its administration could be considered Portugal, as the former colonial power who, although no longer enjoying territorial title because of the Indonesian occupation, still manifested certain residual prerogatives in relation to the territory before it became independent because of its original relationship and subsequent support for self-determination. Despite this fit between East Timor and the Trusteeship model, the Trusteeship Council was not revived for the East Timor administration project. There are many potential reasons for this, but perhaps what was ultimately determinative was the desire not to associate UNTAET with ‘colonialist’ trusteeship. Many G77 states in particular regard the Trusteeship Council as a colonial institution that has no place in the post-colonial world, even if at the same time they were prepared to support the introduction of UN administration into East Timor because the local population were deemed, in the words of the League Covenant, ‘not yet able to stand by themselves under the strenuous conditions of the modern world’.55 The Trusteeship Council, like the Mandates Commission before it, can be seen as mechanisms, alongside the varying commitments to development and the denial of title on the part of the administering states, to mitigate what were in many respects colonial arrangements.56 Specifically, the two institutions responded to the fear that individual states could not be relied upon to administer the territories in a manner that best served the interests of the local population, by supervising the conduct of this administration.57 The disregard for the Trusteeship Council when UN administration was planned for East Timor underlines the normative distinction between states and international organizations identified earlier; now that the administering actor is the United Nations – the very actor that would safeguard the interests of the local population through supervising the conduct of administration by individual states – the need for a supervisory mechanism is obviated. While with states good faith and selflessness is questioned, with the United Nations it is assumed.

Colonialism redux? 43

Conclusion In this chapter I have attempted to capture some of the ways mainstream international policy discourse distinguishes the post-colonial international territorial administration projects from their colonial forebears, in the normative sense that they have become acceptable in practice despite operating in many respects like those colonial predecessors. Exploring how international territorial administration has come to be normatively distinguished from colonialism is not, of course, the same as holding that such normative distinction is, in the final analysis, sustainable. Rather, it provides one way into a broad-ranging critical evaluation of the legitimacy of international territorial administration by mapping some of the sites in which current structures of legitimation are located. How might such a critical evaluation proceed? I would make two suggestions. First, one might consider whether on their own terms the present structures of legitimation are persuasive. The present focus on one activity performed by international organizations reminds us how important it is to place into question the extent to which international organizations, the substantive norms of international law and the ‘legislative’ role of the Security Council are legitimate. This issue is relevant not only in terms of the idea of international territorial administration itself, but also in terms of some of the ways in which it purports to serve its purposes. For example, the role of international territorial administration as a neutral buffer facilitating the handover of territory between two entities – as in Eastern Slavonia – presupposes a particular normative idea of the international organization involved as independent and impartial as between different actors generally and the two entities directly involved in particular. How sustainable is this notion? Second, one might ask whether the very sites of legitimation raised by a comparison with the colonial institution are themselves sufficient for addressing the question of legitimacy. What understandings of legitimacy are suggested by this particular approach to the question, and are they supportable? What of other factors subsisting outside this framework – for example, the question of whether on their own terms the objectives of the missions are achievable, given the way in which these objectives are pursued through the mechanism of international territorial administration? When used to remedy perceived local incapacities for governance, does this mechanism actually hamper the long-term improvement in such capacities by disempowering local actors and fostering dependence by displacing them in the activity of governance?58 Moreover, do the administrative missions create

44 Ralph Wilde a problematic tension on the part of officials between their duties to the people in the territory and their loyalties to the organization?59 Are these officials even up to the job of government in the first place? Clearly there are significant differences in legitimacy between the CPA in Iraq and the United Nations in Kosovo, but I would suggest that a partial explanation for the exaggerated nature of the distinction one finds in mainstream discourse can be found in a similarly exaggerated reliance on the tripartite structure of legitimacy associated with the international. Not only does this structure of legitimacy need to be questioned, both generally and in relation to international territorial administration; the underlying rationale for considering it – the need to face up to the colonial critique – should be repositioned as but one of a variety of different challenges to be addressed when considering the legitimacy of current and future international territorial administration projects.

Notes 1 Thanks to Dr Silvia Borelli for research assistance. 2 Said, E.W. Culture and Imperialism, London: Vintage, 1993, p. 8. According to Shashi Tharoor [I]nternationally, the subject of colonialism is . . . passé . . . [t]here is little room for controversy, since the need for decolonization is no longer much debated, and what little remains of colonialism itself no longer generates much conflict. Tharoor, S., ‘The Messy Afterlife of Colonialism’, Global Governance, vol. 8, no. 1, 2002, p. 1. 3 International Crisis Group, ‘Is Dayton Failing? Bosnia Four Years after the Peace Agreement’, ICG Europe Report No. 80, 28 October 1999, available at http://www.crisisgroup.org/library/documents/report_archive/A400058_ 28101999.pdf (accessed 2 June 2006), p. 133. See also D. Chandler, ‘Bosnia’s new colonial governor’, The Guardian, 9 July 2002, Comment & Analysis, p. 16. 4 For example, Füredi, F., The New Ideology of Imperialism: Renewing the Moral Imperative, London: Pluto Press, 1994; Hardt, M. and Negri, A., Empire, Cambridge, MA: Harvard University Press, 2000; Harvey, D. The New Imperialism, Oxford: Oxford University Press, 2005. 5 See, for example, Gregory, D., The Colonial Present: Afghanistan, Palestine, Iraq, Oxford: Blackwell, 2004; Steele, J., ‘Read the small print’, The Guardian, 31 March 2003, p. 18; Murray, A., ‘Hostages of the empire’, The Guardian, 1 July 2003, p. 19; Juma’a Awad, H., ‘Leave our country now’, The Guardian, 18 February 2005, p. 26; ‘Tony Blair cannot really want to invade Africa’, Sunday Telegraph, 10 October 2004, p. 27; Jenkins, S., ‘To say we must stay in Iraq to save it from chaos is a lie’, The Guardian, 21 September 2005, p. 33.

Colonialism redux? 45 6 On the Western Sahara, see Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12 (hereinafter ‘Western Sahara Opinion’); Harris, D.J., Cases and Materials on International Law, London, Sweet and Maxwell, 6th edn. 2004, p. 114; Franck, T.M., ‘The Stealing of the Sahara’, 70 (1976) AJIL 694, pp. 696–7. On the history of the Western Sahara, see, for example, Vance, R.T., ‘Recognition as an Affirmative Step in the Decolonization Process: The Case of Western Sahara’, Yale Journal of World Public Order, vol. 45, no. 7, 1980, and the useful summary in United Nations, ‘MINURSO Background’, available at http://www.un.org/Depts/dpko/ missions/minurso/background.html (accessed 2 June 2006); for the period up to 1976, see Franck, ‘The Stealing of the Sahara’, pp. 696–7. 7 Thus Said focuses his critical attention on other manifestations of what he considers to be ‘imperialism’. In the full version of the sentence from which the above quotation is taken, Said observes that [I]n our time direct colonialism has largely ended; imperialism . . . lingers where it has always been, in a kind of general cultural sphere as well as in specific political, ideological, economic and social practices.

8

9 10 11 12

Said, Culture and Imperialism, p. 8. Other commentators focus on the legacy of colonialism in former colonies, and/or other practices that are described as ‘neo-colonial’ because they share certain commonalities with colonialism. Such study, along with reinterpretations of colonial history, has been conducted under the rubric of ‘post-colonial studies’. See, for example, Spivak, G.C., In Other Worlds: Essays in Cultural Politics, New York: Routledge 1988 and The Post-Colonial Critic, New York: Routledge, 1990; Ashcroft, B., Griffiths, G. and Tiffin, H. (eds), The Post-Colonial Studies Reader, New York: Routledge, 1995; Said, E.W., Orientalism. Western Conceptions of the Orient (reissue with new afterword), London: Penguin Books, 1995; Loomba, A., Colonialism/ Postcolonialism, London: Routledge, 1998 and sources cited therein; Spivak, G.C., A Critique of Postcolonial Reason: Toward a History of the Vanishing Present, Cambridge, MA: Harvard University Press, 1999; Ashcroft, B., Griffiths, G. and Tiffin, H., Post-Colonial Studies: The Key Concepts, New York: Routledge, 2000 and sources cited therein. See, for example, Wilde, R., ‘From Danzig to East Timor and Beyond: the Role of International Territorial Administration’, 95 (2001) AJIL 583; Wilde, R., ‘Representing International Territorial Administration’, 15 (2004) EJIL 71: Wilde, R., Foreign Territorial Administration and International Law, Oxford: Oxford University Press, 2007. For example, ‘Kosovo and Macedonia – Better and Worse’, The Economist, 17 November 2001, p. 46. For example, Chandler, ‘Bosnia’s new colonial governor’. For example, ‘Kosovo and Macedonia – Better and Worse’, The Economist, 17 November 2001, 46. Caplan, R., A New Trusteeship? International Administration of WarTorn Territories, Adelphi Paper No. 341, 2002. The reference to ‘Trusteeship’ was not included in the subsequent book based partly on this research, Caplan, R., International Governance of War-Torn Territories: Rule and Reconstruction, Oxford: Oxford University Press, 2005.

46 Ralph Wilde 13 Knaus, G. and Martin, F., ‘Lessons from Bosnia and Herzegovina – Travails of the European Raj’, ESI Report, 3 July 2003, available at http://www.esiweb.org/index.php?lang=en&id=156&document_ID=59 (accessed 2 June 2006), reprinted in Journal of Democracy, vol. 14, 2003. 14 Bain, W., Between Anarchy and Society. Trusteeship and the Obligations of Power, Oxford: Oxford University Press, 2003; see also Bain, W., ‘The Political Theory of Trusteeship and the Twilight of International Equality’, International Relations, vol. 59, 2003. 15 See note 5. 16 Traynor, I., ‘Ashdown “running Bosnia like a Raj”’, The Guardian, 5 July 2003, available at http://www.guardian.co.uk/international/story/ 0,,991947,00.html (accessed 2 June 2006). 17 For one example from Bosnia and Herzegovina, see OHR, Supervisor of ˇ Brcko Order on Privatization in the District of Brcko, 4 December 1997, ˇ available at http://www.ohr.int/ohr-offices/brcko/default.asp?content_ id=5342 (accessed 2 June 2006). For one example from Kosovo, see, for example, UNMIK Regulation No. 2002/12 on the Establishment of the Kosovo Trust Agency (KTA), as amended by UNMIK Regulation No. 2005/18, 22 April 2005. The KTA is an independent institution created by UNMIK ‘to preserve or enhance the value, viability, and corporate governance of socially owned and public enterprises in Kosovo’ and it is responsible for the process of privatization of socially owned enterprises: see http://www.kta-kosovo.org/ (accessed 2 June 2006). 18 See Briefing from the Prime Minister’s Official Spokesman, 12 May 2003, available at http://www.pm.gov.uk/output/Page3648.asp (accessed 2 June 2006). Ms Short set out the reasons for her resignations in a speech delivered in the House of Commons on 12 May 2003 (Hansard, HC Deb 12 May 2003, cc 36–39, available at http://www.publications.parliament.uk/ pa/cm200203/cmhansrd/vo030512/debtext/30512–09.htm#30512–09_ spnew8 (accessed 2 June 2006)). 19 This exchange took place at the opening panel of a conference on ‘Post-War Iraq’ held by the British Institute for International and Comparative Law (BIICL) at Senate House in London, 26 February 2004. 20 Conrad, J., Heart of Darkness (1902) (London: Penguin Books, 1995 edn), p. 20. 21 On the presentation of colonialism as exploitative, see, for example Said, Culture and Imperialism, passim; Ashcroft, Griffiths and Tiffin, Post-Colonial Studies: The Key Concepts, pp. 45–7; Schama, S., A History of Britain, Volume 3: The Fate of Empire 1776–2000, London: Miramax Books, 2002, chapter 6; Ferguson, N., Empire, How Britain Made the Modern World, London: Allen Lane, 2003, introduction; Otto, D., ‘Subalternity and international law: the problems of global community and the incommensurability of Difference’, Social and Legal Studies, vol. 5, 1996, 337, passim. 22 See, for example Otto, ‘Subalternity and International Law’, passim; Gordon, R., ‘Saving Failed States: Sometimes a Neocolonialist Notion’, American University Journal of International Law and Policy, vol. 12, 1997, p. 903, passim; Anghie, A., ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, Harvard International Law Journal, vol. 40, no. 1, 1999, pp. 36–49.

Colonialism redux? 47 23 See, for example Ashcroft, Griffiths and Tiffin, Post-Colonial Studies: The Key Concepts, pp. 46–8; Otto, ‘Subalternity and International Law’, passim; Gordon, ‘Saving Failed States’, pp. 907, 925–7, 946, and passim. 24 Schama, A History of Britain, p. 318. 25 Ashcroft, Griffiths and Tiffin, Post-Colonial Studies: The Key Concepts, p. 47. 26 Ibid., p. 47. 27 On the expansion in Security Council activities generally, see, for example Sarooshi, D., The United Nations and the Development of Collective Security, Oxford: Oxford University Press, 1999. 28 See, for example White, N., The Law of International Organizations, Manchester, Manchester University Press, 1996, chapter 7. 29 Richardson, H.J., ‘ “Failed States,” Self-Determination, and preventative diplomacy: colonialist nostalgia and democratic expectations’, Temple International & Comparative Law Journal, vol. 10, no. 1, 1996, p. 53. 30 In its request to the United Nations for assistance; see SC Res. 143 (1960), 14 July 1960, second preambular sentence. 31 In the Agreement between Indonesia and the Netherlands Concerning West New Guinea (West Irian), 15 August 1962, 437 UNTS 273. 32 In the Cambodia Agreements agreed to by Cambodia in 1991 (Final Act of the Paris Conference on Cambodia; Agreement on a Comprehensive Political Settlement of the Cambodia Conflict; Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia; Declaration on the Rehabilitation and Reconstruction of Cambodia, Paris, 23 October 1991, UN Doc. A/46/608 – S/2317730 (1991), Annex). 33 In the Memorandum of Understanding on the European Union Administration of Mostar (‘Mostar MOU’) of 5 July 1994, signed by ‘the Republic of Bosnia and Herzegovina, as well as the Federation of Bosnia and Herzegovina, the Local Administration of Mostar East, the Local Administration of Mostar West and the Bosnian Croats’. 34 In Annex 10 to the General Framework Agreement for Peace in Bosnia and Herzegovina (hereinafter ‘Dayton GFA’), 14 December 1995, agreed to by Bosnia Herzegovina, Croatia and Federal Republic of Yugoslavia; the text of the Dayton GFA and of its various Annexes, which are separate treaties, is reprinted in 35 (1996) ILM 89. Annex 10 to the Dayton GFA was agreed to by Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia, the Federation of Bosnia and Herzegovina and the Republika Srpska. Annex 5 to the Dayton GFA, agreed by Bosnia and Herzegovina, the Federation and the Republika Srpska, authorized the arbitral tribunal that provided the authority for the OHR Supervisor in Br cˇ ko in the Br cˇ ko Award 1997 (see Arbitration for the Brˇcko Area (Federation of Bosnia and Herzegovina v Republika Srpska), Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brˇc ko Area, Award, 14 February 1997, UN Doc. S/1997/126 (1997)). 35 In Annex 4 to the Dayton GFA, approved by Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (for the Constitutional Court and the Central Bank), Annex 6 to the Dayton GFA, agreed by Bosnia and Herzegovina, of Bosnia and Herzegovina and the Republika Srpska (for the Human Rights Chamber and the Human Rights

48 Ralph Wilde

36 37 38 39

40

41 42

43 44 45 46

Ombudsman), Annex 7 to the Dayton GFA agreed by Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (for the Commission for Real Property Claims), Annex 8 to the Dayton GFA agreed by Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (for the Commission to Preserve National Monuments), Annex 9 to the Dayton GFA, agreed by the Federation of Bosnia and Herzegovina and the Republika Srpska (for the Commission on Public Corporations). In Annex 3 to the Dayton GFA, agreed by Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska. In the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, UN Doc. A/50/757 – S/1995/951, 15 November 1995, Annex. In the Memorandum of Understanding between Iraq and the United Nations on the Implementation of Security Council Resolution 986 (1995), 20 May 1996, UN Doc. S/1996/356 (1996). In the Agreement on the Principles (Peace Plan) to Move Towards a Resolution of the Kosovo Crisis Presented to the Leadership of the Federal Republic of Yugoslavia by the President of Finland, Martti Ahtisaari, representing the European Union and Viktor Chernomyrdin, Special Representative of the President of the Russian Federation, 3 June 1999, UN Doc. S/1999/649, Annex. See SC Res. 143 (1960), 14 July 1960 (for the Congo); SC Res. 717 (1991), 16 October 1991 (for Cambodia); SC Res. 1031 (1995), 15 December 1995 (for Bosnia and Herzegovina); SC Res. 1037 (1996), 15 January 1996, SC Res. 1079 (1996) (15 November 1996) and SC Res. 1120 (1997), 14 July 1997 (for Eastern Slavonia); SC Res. 986 (1995), 14 April 1995 (for northern Iraq); SC Res. 1244 (1999), 10 June 1999 (for Kosovo). See SC Res. 814 (1996), 26 March 1996, para. 4. Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, available at http://www.un.org/peace/etimor99/agreement/agreeFrame_Eng01.html and Appendix, ‘A Constitutional Framework for a Special Autonomy for East Timor’, available at http://www.un.org/peace/etimor99/agreement/ agreeFrame_Eng02.html; Agreement between the Governments of Indonesia and Portugal and the United Nations Regarding the Modalities for the Popular Consultation of the East Timorese through a Direct Ballot, 5 May 1999, available at http://www.un.org/peace/etimor99/agreement/ agreeFrame_Eng03.html; Agreement between the Governments of Indonesia and Portugal and the United Nations on Security, 5 May 1999, available at http://www.un.org/peace/etimor99/agreement/agreeFrame_ Eng04.html (hereinafter, respectively, ‘East Timor May Agreement 1’, ‘East Timor May Agreement 2’ and ‘East Timor May Agreement 3’). On the consultations in East Timor, see Secretary General, Letter to the President of the Security Council Regarding the Result of the Popular Consultation, 3 September 1999, UN Doc. S/1999/944 (1999). East Timor May Agreement 1 (note 42), Art. 6. SC Res. 1272 (1999), 25 October 1999, preamble, para. 3. See East Timor May Agreement 2 (note 42).

Colonialism redux? 49 47 See http://www.un.org/peace/etimor99/POSTERS/p3ee.jpg (accessed 2 June 2006). 48 SC Res. 1272 (1999), 25 October 1999. 49 Art. 1, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; Art. 1, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3. 50 Cf. the comment by the International Court of Justice, that to say that the United Nations enjoys legal personality ‘is not the same thing as saying that it is State, which it certainly is not’; Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174, at p. 179. 51 On the ‘impartiality’ of UN peace operations, see, for example Vohra, S., ‘Impartiality in United Nations Peace-Keeping’, Leiden Journal of International Law,vol. 63, no. 9, 1996, passim and sources cited therein. 52 See, for example the award of the Nobel peace prize to the United Nations and its Secretary General in 2001 ‘for their work for a better organized and more peaceful world’; see Norwegian Nobel Committee, Press Release, ‘The Nobel Peace Prize 2001’, 12 October 2001, available at http://www. nobel.se/peace/laureates/2001/press.html (accessed 2 June 2006). 53 UN Charter, Art. 77. 54 UN Charter, Art. 81. 55 League Covenant, Art. 22. 56 For the representation of these arrangements as colonial, see, for example Ashcroft, Griffiths and Tiffin, Post-Colonial Studies: The Key Concepts, p. 47. 57 See, for example Tsagourias, N., ‘Humanism and the Mandates System: Its Modern Revival’, Hague Yearbook of International Law 97,vol. 13, 2000, p. 98 text accompanying note 5. 58 I discuss this in Wilde, R., ‘The Ambivalent Mandates of International Organizations in Bosnia-Herzegovina, Kosovo and East Timor’, in Proceedings of the Joint Meeting of the Australian & New Zealand Society of International Law and the American Society of International Law, 2000, pp. 319–21. 59 I discuss this in Wilde, R., ‘The Complex Role of the Legal Adviser When International Organizations Administer Territory’, American Society of International Law, Proceedings of the 95th Annual Meeting, 2001, pp. 251–61.

3

State-building Power without responsibility Philip Cunliffe

Introduction One of the dominant, if not the predominant trend of international relations in the immediate aftermath of the Cold War, was the dethroning of the sovereign nation state as the subject of international politics. Some commentators referred to this as the emergence of a ‘postWestphalian’ era, implicitly suggesting that centuries of international politics were being abruptly overturned. By contrast, in the early twenty-first century the dominant theme of international relations seems to be almost the symmetrical opposite of the 1990s: the pressing need to construct viable, autonomous states. Having ostensibly shed the historical ballast of centuries in a matter of years, international politics now seems to be in reverse gear – the state is back. Paul Martin, Prime Minister of Canada, argues ‘it comes down to this: how well are we doing in helping to make weak states stronger so that they can better fulfil their responsibilities to their own people and to others? . . . All the aid in the world will have only a fleeting effect if a country does not have functioning public institutions and a rule of law. Development depends on good governance’.1 In his latest offering, Francis Fukuyama explains why building strong states is of such contemporary importance: ‘state building is one of the most important issues for the world community because weak or failed states are the source of many of the world’s most serious problems, from poverty to AIDS to drugs to terrorism’.2 President Bush echoed this outlook in his second inaugural speech: ‘We have seen our vulnerability, and we have seen its deepest source. For as long as whole regions of the world simmer in resentment and tyranny – prone to ideologies that feed hatred and excuse murder – violence will gather, and multiply in destructive power, and cross the most defended borders and raise a mortal threat.’3 Commenting on the President’s second inauguration, the editor-in-chief

Power without responsibility 51 of The Washington Times noted, ‘Four years ago George W. Bush was bubbling with scepticism, if not barely concealed contempt, for the notion of “nation building.” Yesterday he promised to rebuild the world.’4 The main aim of this chapter is to try to assess the significance of this putative rediscovery of the state. In so doing, I shall advocate the following shifts in the research agenda of state-building: first, a shift away from the categories of ‘colonialism’, ‘empire’ and ‘imperialism’ that are so promiscuously used in reference to practices of state-building. Second, I shall argue that the current research agenda of state-building has so far failed to fully grapple with the historical specificity of contemporary state-building projects. Capturing the historically distinctive nature of contemporary state-building, I argue, involves fully engaging with the evolution of international relations in the 1990s rather than trying to distil the case study most relevant to today from the historical record of state-building. The argument advanced below is that the dynamics of post-Cold War politics have changed form but not content, and that the ascendance of contemporary state-building represents the consolidation of the two basic trends that have dominated politics in the post-Cold War era: namely, the politics of emergency and the exercise of power without responsibility. The meaning and implication of these claims will be clarified later on. First, however, I shall further clarify my aims by explicitly stating what I am not setting out to do. I shall not be dissecting post-conflict reconstruction policy or systematically working through historical or contemporary case studies of state-building. Nor am I promising a precise chronology. Rather I am seeking to consider the conceptual issues that constitute the framework through which policy is understood and implemented. Any engagement with empirical examples will be characterised, in the words of Hedley Bull, ‘by explicit reliance upon the exercise of judgement’. Any ‘general propositions’ thereby generated ‘cannot be accorded anything more than the tentative and inconclusive status appropriate to their doubtful origin’.5 This is not to unequivocally endorse the ‘classical approach’ to international relations. But the overall aim of this chapter is to explore rather than to test, and to thereby provide a foundation for further research and discussion. By analysing the abrupt shift from eroding state sovereignty to rebuilding states, the analytical framework below is trying to grasp what Bull termed the ‘play of international politics’, the ‘quality it has of changing before our eyes and slipping between our fingers even as we try to categorise it’.6 By retaining this grasp of the dynamic and multifaceted nature of international politics, I hope to maintain an

52 Philip Cunliffe interpretive, humanist emphasis that allows us, in Robert Jackson’s words, to gain ‘insight into the mentality of the [states] people involved and the circumstances in which they find themselves’.7

Outline The argument proceeds as follows. First, I outline the definitive yet amorphous impression of novelty that informs discussions of international relations in the wake of the terror attacks of 11 September 2001 – a sense of novelty that some commentators have characterised as the ‘end of the interregnum’. Taking my cue from Fukuyama, I shall argue that state-building, and the rehabilitation of the state that this policy agenda implies, is one of the distinctive and defining elements of this ‘post-interregnum’ period. Having outlined the characteristics of the two periods that constitute our post-Cold War era, I then move to consider the connection between them, noting the ignominious decline of humanitarian intervention. Fukuyama argues that the rehabilitation of the state arises from the discrediting of the ‘Washington Consensus’. I shall argue that state-building must be related to the post-Westphalian politics of the 1990s as much as, if not more so, than the economics. The crux of the argument is in this point; namely, that a tight conceptual link must be built between the so-called postWestphalian political developments of the 1990s (principally the rise of human rights and its corollary, the ‘new interventionism’) and the state-building projects of the present. The link is the exercise of power without responsibility. What this means is the attempt to exercise power unencumbered by the requirements of accountability or representation. I shall argue that over the course of the 1990s through crisis management human rights have inexorably, but largely inadvertently, expanded the remit of Western power over non-Western societies. As more and more societies have fallen into the orbit of the Western states, paradoxically, in order to continue exercising power without accountability, Western states have had to build strong states in the developing world – in order to avoid being encumbered by the institutions of direct domination. These ‘strong states’ in-waiting are even less autonomous, both in theory and practice, than the majority of the states that emerged from decolonisation during the Cold War. Nonetheless the exercise of statebuilding is the mechanism for shedding the political costs of domination, while maintaining the substance of domination. I conclude by explaining why the exercise of power without responsibility is the defining feature of post-Cold War international relations. This is tied

Power without responsibility 53 to what one scholar has called ‘the crisis of meaning’ in international politics – or, more prosaically, Fukuyama’s ‘end of history’ thesis.8 I argue that it is the post-ideological inability to construct a viable narrative framework within which to situate the exercise of power that undermines our ability to assess how circumstances differ across time that makes responsibility so onerous to construct or bear, thereby severely compromising political legitimacy.

An interregnum? If there was a single feature that characterised international relations in the 1990s, it was the putative eclipse of the sovereign nation state. Reports of the death of the state have of course always turned out to be exaggerated. But that does not exonerate us from trying to capture what is historically distinctive about each exaggerated ‘death of’ report, and the context in and extent to which the state reaffirms itself. In the post-Cold War era, the economic interdependence inaugurated by globalisation and the proliferation of non-state actors and international organisations were several major trends that seemed to call into question the traditional assumptions regarding the dynamics of world politics. While there were some intellectual rearguard activities that questioned the extent and depth of these changes in the world order, in the academy these changes were reflected by the consolidation of a ‘post-positivist’ research agenda and the confused retreat of realism – that school of thought that had dedicated itself to mapping out relations between nation states. Another major encroachment on the status of the state in international relations was the elevation of the individual in post-Cold War international law – a development that both reflected and strengthened the new interventionism,9 or increasing proclivity of the Western states to use coercive force in defence of individual human rights, and a greater willingness to explicitly call into question the right of states to non-intervention, traditionally seen as a corollary of independent sovereign statehood. As Martin Jacques noted, it became ‘fashionable to denigrate national sovereignty. The arguments are well versed: sovereignty is not absolute; it should not be used to excuse the abuse of human rights; the needs of justice should override the principle of sovereignty’.10 Ken Booth was particularly lurid: ‘the grammar of the system of state sovereignty and statism constructed from the seventeenth to the twentieth century led inexorably to the Holocaust and atomic warfare . . . In the killing fields at the apogee of Westphalia – Dachau and Hiroshima . . .’11

54 Philip Cunliffe Yet recently there is a distinctive and simultaneously inchoate sense that the terror attacks of 11 September 2001 punctuate the post-Cold War era, dividing it in to a ‘before’ and ‘after’. Much of this sense of ‘post-9/11’ novelty coalesces around a renewal of the role of the sovereign nation state. The unease at the recrudescence of the state was perhaps most poignantly expressed by Mary Kaldor, as brought out by Martin Jacques in a review essay of Mary Kaldor’s Global Civil Society: An Answer to War. Tellingly, near the end she [Kaldor] writes: ‘Will we look back on the last decade as the “happy Nineties”? Was it an interregnum between global conflicts when utopian ideas like global civil society, human rights, a global rule of law, or global social justice seemed possible? Or was it, on another interpretation, the moment when global civil society came of age?’ I fear the answer is already pretty clear.12 The ‘answer’ that Jacques sees is that the 1990s was a brief, disoriented period of respite between the end of the Cold War and the ‘beginning of another defining epoch, the emergence of the US as the hyperpower’13: [T]he accretion of a body of international law and the mushrooming of international institutions . . . are intimations of a nascent sense of global community. But these tendencies have lulled many commentators into underestimating the continuing strength and importance of the nation-state. The emergence of the US as a unilateral superpower was a rude reminder of where power is really located . . . The arrival of China as a superpower, and probably India a little further down the historical road will only reinforce the underlying importance of the nation-state.14 The need to reassess the role of the state has led some to construct a threefold typology of the contemporary state, deployed by Robert Cooper and Robert Kagan to classify post-colonial ‘weak’ states in the developing world as ‘pre-modern’; the US as a ‘modern state’, and the states of the European Union as ‘post-modern’.15 It is important to emphasise at this point that it is not merely issues of post-conflict reconstruction in Afghanistan and Iraq that have imprinted state-building on to the current agenda of international politics. As the dust jacket of Fukuyama’s latest book helpfully reminds us, ‘Francis Fukuyama, a leading political observer, has an uncanny

Power without responsibility 55 knack of identifying the next critical issue and shaping the debate around it.’ The concept of state-building has penetrated and altered other discrete policy arenas and long-standing international issues, including fields such as development16 and the Israeli–Palestinian conflict. Javier Solana, Secretary General of the Council of the European Union and High Representative for the Common Foreign and Security Policy, claims ‘Whereas the security threats of the past century came from strong states, those of the 21st century come from weak and failing ones’ (emphasis added). Solana also notes that ‘There is another nation that needs to be built if international peace is to be secured. The international community set 2005 as the deadline for the completion of the process leading to a viable, peaceful and democratic Palestinian state,’17 a view confirmed by an Arab journalist: ‘[I]n occupied Palestine, you hear the mantra of “capacity building” over and over again . . . wherever you go the talk is all about state building’.18 Rodrigo de Rato, managing director of the International Monetary Fund notes, ‘As with crisis prevention, so with poverty reduction...poor countries themselves are committed to improving their governance.’19 As one commentator wearily remarked, ‘[w]hile the international community’s appetite for transformational nation-building, stimulated by President George Bush’s crusade for global freedom, shows no sign of satiation, it habitually bites off more than it can chew...[a] growing list of nation-building and aid projects...if Mr Bush has his way, could one day include Zimbabwe, Sudan, North Korea, Burma and Belarus.’20 A broad consensus seems to be coalescing around state-building. As Javier Solana noted: There is a broadening transatlantic consensus that the quality of international society depends on the quality of governments that are its foundation. Whereas the security threats of the past century came from strong states, those of the 21st century come from weak and failing ones. Addressing these new threats requires a mix of instruments best assembled and deployed as part of a collaborative international venture. Whether we choose to call it ‘nation building’ or ‘stabilisation and reconstruction’, the tasks we face are substantial.21 British journalist Simon Tisdall reaffirmed this sense of a ‘broadening transatlantic consensus’ when reporting on President Bush’s state visit to Germany: he observed ‘[t]he German chancellor’s call for “a strong European pillar” with equal responsibilities was interpreted as widening

56 Philip Cunliffe the transatlantic divide. In fact his speech was a timely if clumsy attempt to close the gap by building more coherent joint platforms for managing the growing list of nation-building and aid projects.’22 The two most recent ‘blue sky’ documents dealing with issues of sovereignty and intervention (the ICISS report Responsibility to Protect and the High Level Panel Report) have both attempted to rehabilitate a role for the state in protecting human rights in international politics, rather than merely focusing on the ‘right of intervention’.23 In this sense, the ascent of the ‘sovereignty as responsibility’ doctrine is also part of the shift to state-building. The ‘Peacebuilding Commission’ proposed by the High Level Panel is a relatively uncontroversial proposal (at least in terms of substance) in an otherwise controversial report. Developing countries that have been deeply hostile to talk of a ‘right of intervention’ have been pleased to embrace state-building (or at least peacebuilding or post-conflict reconstruction). China, for example, sees strengthening the ‘rule of law’ in the ‘reconstruction of conflict regions’ as the domestic complement to strengthening the international rule of law (i.e. restraining intervention). The rule of law is an embodiment of human civilization...the rule of law must be adhered to and respected in safeguarding international peace and security...all countries must strictly abide by the UN Charter, uphold the principles of the sovereign equality and the non-interference of internal affairs...An urgent task for the United Nations at the current stage is to provide a greater assistance and support in the rule of law to the reconstruction of conflict regions...The participation of external parties should be for the purpose of providing guidance, focusing on strengthening local capacity building rather than imposing preconceived models.24 One diplomat of a developing country that contributes its troops to peacekeeping operations pointed out to me that peacebuilding tasks (such as infrastructural projects) do not need to fall under the controversy of a ‘Chapter VII mandate’ (the chapter of the UN Charter governing the use of force beyond self-defence for UN personnel), but can also be carried out under ‘Chapter VI mandates’ (the mandate that was usually used to govern the deployment of peacekeepers stationed in buffer zones between the armies of warring states, not forces involved in peacebuilding).25 In short, there is now a broad agreement that strong states are needed – something that was anathema to the prevailing consensus of the 1990s, when strong states were associated with aggressive nationalism and passé economic models.

Power without responsibility 57

Bringing the state back in Having outlined the contours of a new consensus on strong states, this begs the question of what connects these two contrasting periods divided only by a matter of a few years with one characterised by the suppression of state sovereignty and the other by building back state strength. How does one evolve into the other? This amorphous sense of historical novelty (or retrogression, depending on your point of view) filters through into the literature on state-building. Fukuyama largely reads the ascent of state building as a reversal in the fortunes of the much-maligned Washington consensus, with its neo-liberal agenda of ‘rolling back the state’ that allegedly led to an erosion of both state capacity and faith in the state. Gripped by ideological hostility, international organisations dominated by neo-liberalism were incapable of differentiating small states from weak states. The dangers posed by weak states, Fukuyama claims, were most dramatically realised by the terror attacks of 11 September 2001. The response to the terror attacks – such as emphasis on ‘capacity-building’ – are now providing the necessary counterbalance to the discredited neo-liberal agenda of the 1980s and 1990s.26 But another case could be made for the rise of state-building in contemporary diplomacy. If state-building is a reaction to the 1990s, I want to argue that it is less the Washington Consensus that it is reacting to so much as the politics of the post-Westphalian era, and in particular the new intervenionism. For the purposes of this chapter, I want to focus on what I take to be the key politico-legal development of this period: the consolidation of human rights. It is the elevation of the human rights subject relative to the traditional rights of states that is key to understanding the emergence of state-building from the period of the new interventionism. It was argued earlier that the disintegration of humanitarian intervention, and the shift to state-building, resulted from an internal contradiction of humanitarian intervention: its inability to provide a viable framework for the long-term management of international relations, due to its proclivity to elevate moral imperative and subjective judgement (‘unilateralism’) over diplomatic consensus and political accommodation. But this analysis of the internal anatomy of humanitarian intervention can be taken deeper. David Chandler has advanced the argument that what defines human rights is the exercise of power without responsibility.27 Jennifer Welsh has suggested that the search by Western states for new forms of political legitimacy and moral authority to replace the ideologically driven agenda of the Cold War

58 Philip Cunliffe is a key element underlying the interventions of the post-Cold War period.28 Similarly, David Chandler has argued that what has given both form and content to this search for new modes of authority is the malaise of the Western polity itself – a political malaise that has been commented on extensively elsewhere, but has attracted comparatively little comment within the discipline of international relations.29 It is in this context, argues Chandler, that a premium has been placed on the ability of politicians to project unifying values that transcend the traditional, divisive ideologies of left and right, and thereby unify the politically deracinated constituencies of left and right in the aftermath of the Cold War. It is this that, at least partially, makes the moralising claims of human rights so attractive. In these days of increasing cynicism and doubt over government and politics at a domestic level, human rights promotion seems to be the one idea with the power to hold society together and point a way beyond the relativism and pessimism of our times.30 With the demise of the Soviet Union as a practical and political alternative to the West, the international realm suggests itself as a sphere that is far more malleable than the intractable social problems of the Western polity. This contrast between the humdrum sphere of domestic politics and the redemptive, morally charged sphere of the international is contrasted by Chandler with subtle hilarity: The contrast between the moral certainty possible in selected areas of foreign policy and the uncertainties of domestic policy making was unintentionally highlighted when President George Bush congratulated Tony Blair on his willingness to take a stand over Afghanistan and Iraq: ‘The thing I admire about this Prime Minister is that he doesn’t need a poll or a focus group to convince him of the difference between right or wrong.’31 The reasons for the attraction of the international realm in this pursuit are, according to Chandler, twofold. First, that the object of criticism is external – often a foreign government – allows for a Manichean, morally charged ‘politics of condemnation’. Second, in the international sphere there are less formal mechanisms through which Western states can be held to account, offering the intensely tantalising prospect that credit can be claimed for positive outcomes, while negative outcomes can be blamed on factors beyond one’s control.32 Or, as Füredi has pithily observed: ‘failed politicians who are unable to solve the problems of inner-city London or downtown New York feel . . . much more comfortable with handling the situation in Mogadishu with a

Power without responsibility 59 few helicopter gunships’.33 With the West’s political claims no longer called into question by the existence of the Soviet Union, it is easier to meet the political imperative of morally cohering society by promoting human rights universalism internationally rather than domestically. Defending human rights has, at least until recently, allowed Western states to reap immediate rewards with little political cost. It is important to note that Western states’ post-Cold War foreign policies are not reducible to grubbing for votes. As Bellamy has pointed out ‘there is no evidence to suggest that Clinton lost a single vote because he chose not to prevent or halt the Rwandan genocide or that Clinton and Blair gained a single vote because of their activism over Kosovo’.34 The point is that this drive is more elemental than mere populism. Lacking any traditional infusion of legitimacy from the electorate entails that ‘the drive to pursue ethical adventures abroad is . . . directly related to . . . [a] . . . basic . . . instinct of the political establishment – the need for governing administrations to have a sense of self-identity, purpose and self-belief’.35 But the enshrinement of human rights at the core of world politics is not merely the paucity of the institutional machinery of accountability in the international arena. The absence of traditional political concepts – accountability and representation – is built into the very concept of human rights. The discovery by Western political elites that they had to ‘move beyond narrow realism by accepting wider humanitarian obligations as part of a responsible global citizenship’ with the end of the Cold War entailed relativising political responsibility. The ‘narrow realism’ that governed raison d’etat politics entailed no further duty than that of representing the collective will of a state’s citizens – defending human rights, however, entailed a universalisation of responsibility beyond the bounds of accountability. Political responsibility, understood in terms of the ballot box, was downplayed in the presence of the purer moral responsibility of defending human rights. More profoundly, human rights undermine long-standing traditions of modern political thought by consolidating a degraded concept of autonomy. In Chandler’s words, ‘having rejected the universal grounding of political and democratic rights for exaggerating human capacities or for ignoring the social and economic inequalities in society, the “common needs and capacities” [of human rights] are necessarily those at the lowest level of human society. This approach inevitably tends towards a reductive view of the human subject, where capacities are minimised and needs maximised’.36 Those whose human rights are infringed are de facto defined as weak and vulnerable – unable to exercise political agency that has traditionally been seen as endowing state activity with legitimacy.

60 Philip Cunliffe Critical in this elevation of human rights within international society is the question of agency because, as Ayoob argues, ‘those who define human rights and decree that they have been violated also decide when and where intervention to protect such rights should and must take place’.37 Or, in Chandler’s words, ‘the problem with universal moral accountability is that it can never be a replacement for political accountability. In fact the claims for universal moral accountability undermine the notion of democratic accountability itself’.38 As human rights tend to presuppose the diminished capacity of the subjects of those rights. As the content of human rights is established independently of the capacity of the subjects of those rights, this contradiction is resolved by yoking in the agency of external power: ‘because the human subject is defined as being without autonomy, some external source has, of necessity, to be looked to’.39 Thus the inner logic of human rights’ tends to prise apart the subject and agent of rights. In the context of global politics this opens up a rift into which power inexorably creeps. Sympathetically scrutinising Ayoob’s work, Welsh argues that the problems raised by human rights include questions such as ‘[w]ho is it that decides when a state has not fulfilled its responsibilities and determines that only force can bring about its compliance . . . [W]ho should play the role of judge and enforcer in international society?’40 But the real problem is that these questions answer themselves: in the context of gross and massive human rights violations, the question of who is secondary to the moral imperative of action, as Wheeler indicates.41 And in the absence of world government, the imperative of action will inevitably be borne by those with the power to act. In other words, the powerful will always be able to assert themselves as the guardians of human rights over the claims of the actual subjects of human rights. The perversity of human rights was perhaps most apparent in what was until recently seen as the greatest triumph of humanitarian intervention, the North Atlantic Treaty Organization (NATO) campaign against Yugoslavia, as drawn out by Slovenian philosopher Slavoj Didek. The real problem is that a purely humanitarian, purely ethical justification for NATO’s intervention completely depoliticizes it . . . Its intervention has been cloaked and justified exclusively in the depoliticized language of universal human rights. In this context, men and women are no longer political subjects, but helpless victims, robbed of all political identity and reduced to their naked suffering . . . The ideology of victimization is the real problem: it’s perfectly fine to help the helpless Albanians against the Serbian

Power without responsibility 61 monsters, but under no circumstances must they be permitted to throw off this helplessness, to get a hold on themselves as a sovereign and independent political subject – a subject that doesn’t need the kindly shelter of NATO’s ‘protectorate’. No, they have to stay victims. The strategy of NATO is thus perverse in the precise Freudian sense of the word: The other will stay protected so long as it remains the victim.42 But what is also crucial is that the outcome of this fixation with ethical and moral concerns, entails that consequences are downplayed in favour of solving immediate crisis. Policy becomes dominated by its most symbolic elements as it becomes less and less grounded in considerations of realpolitik. The urgency of action entails that humanitarian responses are subject to drift, buffeted by unforeseen consequences: the ethical imperative of action takes precedence over the long-term planning more characteristic of realpolitik. As Chandler argues, the ‘entirely irrational course of the Kosovo war, in realpolitik terms, from diplomacy at Rambouillet, to military strategy, to economic devastation of the region, provides support for the view that being seen to act mattered more than the action itself’. As Susan Woodward told the UK House of Commons Foreign Affairs Committee: ‘there was not a clear political goal’, in fact the policy goal ‘was so weak it changed over the period of time that we were bombing. We kept changing goals and you can follow the rhetoric of the leaders to see that’ . . . The Committee concluded that ‘it seems reasonable to assume that Nato was not clear about its objectives’...A similar lack of clarity about possible war aims in the attack on Afghanistan following the destruction of the World Trade Centre led to nearly a month of uncertainty as the US and British governments delayed any action . . . When the military assault started on 7 October the fact that bin Laden could not be located meant that the claimed objective changed to destabilising the Taliban regime . . . 43 Or as French international relations scholar Zaki Laïdi put it, A shift can be seen in all three crises – Kurdistan, Bosnia and Somalia – with humanitarianism moving from an instrument of political action to becoming a political action itself before incarnating the terminal stage of political inaction. Humanitarian action, which claimed to be a new source of meaning in a [post-Cold War]

62 Philip Cunliffe disoriented world, tends to lose any meaning as fast as it becomes autonomous from politics.44 It is this ‘Potemkin aspect’45 of haphazard processes of international intervention that entails that the policy of Western states leads them in unexpected directions. Humanitarian interventions, peacekeeping operations and the war on terror have haphazardly projected Western power across the globe – bringing more and more poverty-stricken and crisis-ridden societies under the rubric of Western power. As Weiss et al. have noted, in the 1990s ‘a state that was . . . contemplating action that might be found to be a threat to or breach of the peace had to deal with the possibility that the UN Security Council would find its action in violation of international law and therefore launch some coercive response’.46 This is not to mention increasingly invasive bureaucratic regulation: ‘as a historical trend, the United Nations is supervising more rights in more states through more intrusive measures than ever before’.47 The question was – how was this relationship between Western states and the societies that had increasingly fallen under their control to be mediated? The chasm between the grandiloquent declarations of moral responsibility and the lack of political accountability becomes increasingly apparent as the moral imperative of spreading democracy or protecting human rights leads to the increasing expansion of Western power. It is this contradiction, I argue, that state-building seeks to resolve. Ironically, in the immediate aftermath of the Cold War the exercise of power without responsibility led to humanitarian intervention and the consequent need to ‘tame’ state sovereignty. Now the exercise of power without responsibility requires the opposite – the need to build viable states. By capacity building, implementing the rule of law, rebuilding states and indeed the Potemkin elections in Iraq and Afghanistan, Western powers are seeking to divest themselves of any form of more substantial responsibility or accountability for these societies. Ignatieff notes that ‘No imperialists have ever been so impatient for quick results’.48 Ignatieff attributes this to the importance of the domestic electoral cycle, and the continuing resilience of the normative structure of international society, in favour of independence and autonomy – in other words, those same norms that did nothing to check the predatory humanitarianism of the West throughout the 1990s. It is not the strength of anti-imperialist forces that drives capacity building in the Horn of Africa, but the fact that the recreation of empire would entail affirming a direct political relationship with imperial subjects – not merely moral responsibility but some claim of political responsibility as well.

Power without responsibility 63 Some commentators have talked of the revival of ‘trusteeship’ – but tellingly, it is a new institution that is being promoted for contemporary state-building rather than reviving the Trusteeship Council – a Peacebuilding Commission. The institution of trusteeship under the auspices of the League of Nations reflected the declining legitimacy of empire,49 and articulated a long-term moral and political responsibility, cast in terms of a ‘sacred trust’ to oversee those peoples ‘not yet able to stand by themselves under the strenuous conditions of the modern world’, fully acknowledging that the ‘tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it’.50 The idea of state-building by contrast, allows for power to be exercised without the responsibility entailed by direct domination. By eschewing relationships of direct political domination, credit can still be claimed for positive outcomes, and negative outcomes can be blamed on factors beyond one’s control. Timor Leste has been a sovereign state since 20 May 2002. Yet Chesterman notes that ‘[t]he greatest point of leverage for international actors will be Timor’s continued reliance on development assistance over the coming years’.51 Further, Chesterman argues that under the Mandates system the subject populations still had more recourse to hold their imperial masters to account than the current inhabitants of Bosnia, Kosovo or East Timor in the 1990s: ‘the limited powers to formulate questionnaires and consider reports, to accept petitions from inhabitants, and to undertake periodic visits represented a greater level of accountability (at least in principle)’.52 In other words, the same trend – the need to exercise power without responsibility – has produced two different, ostensibly contradictory outcomes in two different periods: the degradation of the state in one period and its revival in the next.

The crisis of meaning This all begs the question of why must power be exercised without responsibility in the post-Cold War period. Why are the ruling elites of Western states so wary of reviving direct relations of political domination? Why do they shrink from proclaiming a sacred trust? The idea of a sacred trust entails having a sense of a future orientation, an ability to project a mission into the future. And it is this sense of future orientation that is specifically lacking in the post-Cold War period, afflicting politics with presentism and crisis management – and here we are back to Fukuyama, and his end of history argument.

64 Philip Cunliffe Zaki Laïdi has elaborated on this argument by noting that the end of the Cold War heralded not only the end of communism but of all forward-looking collective projects. In other words, the end of the Cold War did not represent transcendence but the collapse of the future into the present. For market democracy, as Laïdi notes, ‘aspires neither to reach a new objective nor to construct a new horizon of meaning. It seeks simply to confirm the viability of the existing reality’: ‘political actions no longer find their legitimacy in a vision of the future, but have been reduced to managing the ordinary present’.53 This story of the ‘deconstruction of grand narratives’, to paraphrase Jean-Francois Lyotard, is not new. In so far as the left rejected grand narratives, this can be traced back to 1968. But the implications of this erosion of telos, of future-oriented projects, are rarely drawn out in contemporary understandings of the workings of international politics. This is the value of Laïdi’s analysis. So, to re-specify the original question more precisely: why should the end of grand narratives spell the end of responsibility? Responsibility, a willingness to be held to account, entails a sense of historical thinking. This is a point developed by US social historian Christopher Lasch in his ‘revolt of the elites’ thesis. Lasch inverted the thesis developed by the early twentiethcentury reactionary Jose Ortega y Gasset, who argued in his seminal The Revolt of the Masses (1932) that the forward political march of the masses represented the greatest threat to civilisation. The failings that Ortega attributed to the masses, Lasch argues, can now be legitimately levelled at today’s elites. One of the central failings for which Ortega berated the ‘masses’ was with having no sense of responsibility. Ortega’s diatribe against the masses berated them for being solely oriented towards the future, thereby having no sense of duty to uphold the traditions of the past. Ortega’s times were, of course, vastly different from our own. But the key point is that Ortega saw history and responsibility as intertwined: ‘From Ortega’s point of view, one that was widely shared at the time, the value of the cultural elites lay in their willingness to assume responsibility for the exacting standards without which civilization is impossible. They lived in the service of demanding ideals’.54 Without a sense of history – whether forward or past-oriented – responsibility is impossible. Responsibility – at least in the sense of being willing to be held to account – is a concept that is inextricably intertwined with time. Responsibility relies on historical consciousness, the consciousness of time and change, the ability to provide a coherent narrative within which people are able to make sense of change, evaluate whether particular claims are fulfilled or goals achieved, to compare the

Power without responsibility 65 present and the past and project an alternative future. During the Cold War, political responsibility was judged through the ideologies of left and right that provided the collective yardsticks by which meaningful change was evaluated. As Fukuyama has implied ideology and historical consciousness are intertwined – consequently, the end of ideology has entailed the end of historical consciousness.55 The inability to provide a coherent narrative that can link up different moments entails that meaningful historical responsibility cannot be claimed and defended. By launching into the fray of state-building, Western states are trying to exercise power without responsibility. Hence the rise of presentism, where politics is dominated by the tyranny of the present and we stagger from one crisis to the next. Events cannot be meaningfully integrated into a consistent narrative – one result of which is the rise of the ‘emergency’ as the central political category. The end of utopia has brought the sanctification of emergency, elevating it into a central political category. Thus our societies claim that the urgency of problems forbids from reflecting a project, while in fact it is their total absence of perspective that makes them slaves of emergencies. Emergency does not constitute the first stage of a project of meaning: it represents its active negation.56

Conclusion In this chapter I have argued that the putative differences between the 1990s and the early twenty-first century hinge around the role of the state in international relations. In particular, the early twenty-first century seems to have rehabilitated a role for strong states as opposed to the tendency to suppress state sovereignty in the 1990s. The difference, however, is one of form and not content. The content to the nature of statehood in both periods is the attempt to exercise power without responsibility. In the immediate aftermath of the Cold War, the drive to exercise power without responsibility led to the encroachment and suppression of state sovereignty, principally through means of the coercive new interventionism, where the rights of individuals were elevated in relation to those of states. The defence of human rights across borders allowed Western states to exercise power on behalf of people to whom they were not accountable – a process that reflected the degradation of human agency implicit in the concept of human rights. Driven more by moral concerns than political ones, the human rights framework tended towards crisis management rather than constructing viable political solutions – a process that entailed Western states gathered increasing

66 Philip Cunliffe power over non-Western societies. Yet the imperative of power without responsibility demanded that this domination could not be formalised into any mechanism that would institutionalise Western responsibility in any concrete form. This desire to be unencumbered by the institutions of political power is reflected in the widely remarked-upon lack of appetite for empire among Western elites – and the promotion of statebuilding in its place. The building of strong states entails the restoration of an independence vastly more illusory than the independence won by post-colonial states during decolonisation – but the spectacle of capacity building allows Western states to formally shed any responsibility for non-Western societies. Thus the exercise of power without responsibility produced two different outcomes across time: the degradation of states in one period, the building of states in the next. The lack of responsibility in the post-Cold War exercise of power stems from the decline of historical consciousness that entails that there is no yardstick by which to assess or situate the exercise of power.

Notes 1 Martin, P., ‘Lessons from the Americas’, The Economist: The World in 2005, London: The Economist, 2004. 2 Fukuyama, F., State Building: Governance and World Order in the Twenty First Century, London: Profile Books, 2004, p. ix. 3 Bush, President G.W., ‘Celebrating Freedom, Honouring Service’, Inaugural Address, 2005, accessed at http://www.whitehouse.gov/inaugural/ 4 Pruden, W., ‘No nation building but a world awaits’, The Washington Times, 23 January 2005. Another commentator observed ‘the [Bush] administration . . . once eschewed nation-building . . . as quiche eaters’ social work . . . now Secretary of State Condoleezza Rice is commanding an effort to give new importance to post-conflict reconstruction, and the White House is pumping more money into finding innovative ways of addressing failed states around the world . . . “There’s been a sea change in thinking as a result of the engagements in Afghanistan and Iraq,” says James Dobbins, a former diplomat in the Bush and Clinton administrations’. LaFranchi, H. ‘Nation-building, once scorned, is embraced’, The Christian Science Monitor, 31 March 2005. US Major General Samuel T. Helland, who leads the ‘Combined Joint Task Force-Horn of Africa’ responsible for counterterrorism operations in the region, spoke to reporters about ‘building peace’ through ‘unconventional warfare’ in the region. ‘[P]art of [our] job is enhancing security and stability, and bringing a better life for the people who live there . . . So we help with the schools, the clinics, engineering. We drill wells.’ Asked if his task force is engaged in nation building, Helland said: ‘It is not fair to assign the title “nation building” to what we’re doing, because we are not doing nation building. We’re doing capacity building[.]’

Power without responsibility 67

5 6 7 8 9 10 11 12 13 14 15 16

17 18 19 20 21 22 23

Corey, C.W., ‘Military task force drills wells, runs clinics in the horn of Africa’, United States Department of State, 24 March 2005. See also Serhuk, V. and Donnelly, T., ‘Nation building, after all’, The Weekly Standard, 11 April 2005; Gropman, A., ‘Nation building and its problems’, The Washington Times, 21 March 2005. Bull, H., ‘International theory: the case for a classical approach’, World Politics, vol. 18, no. 3, 1966, p. 361. Ibid., p. 368. Jackson, R.H., The Global Covenant: Human Conduct in a World of States, New York: Oxford University Press, 2003, p. 71. Laïdi, Z., A World Without Meaning: Crisis of Meaning in International Politics, London: Routledge, 1998; Fukuyama, F., The End of History and the Last Man, London: Hamish Hamilton, 1992. Chesterman, S., You, the People: The United Nations, Transitional Administrations and State Building, Oxford: Oxford University Press, 2004, p. 203. Jacques, M., ‘The power of one’, The Guardian, 26 May 2003. Booth, K., ‘Three tyrannies’, in Dunne, T. and Wheeler, N.J. (eds), Human Rights in Global Politics, Cambridge: Cambridge University Press, 1999, pp. 64–5. Jacques, M., ‘The Interregnum’, London Review of Books, vol. 26, no. 3, 5 February 2004. Ibid. Jacques, M., ‘Strength in Numbers’, The Guardian, 23 October 2004. Cooper, R., The Breaking of Nations: Order and Chaos in the Twenty-first Century, London: Atlantic Books, 2004 and Kagan, R., Paradise and Power: America and Europe in the New World Order, London: Atlantic Books. Mark Duffield alighted upon the nexus between security and development some years ago: ‘The commitment to conflict resolution and the reconstruction of societies in such a way as to avoid future wars represents a marked radicalisation of the politics of development. Societies must be changed so that past problems do not arise, as happened with development in the past . . .’. Duffield, M., Global Governance and the New Wars. The Merging of Development and Security, London: Zed Books, 2002, p. 15. See also Ohia, P., ‘Politician seeks women involvement in nation building’, This Day, Lagos, 14 March 2005; ‘Get involved in nation building’, Accra Daily Mail, 8 March 2005; Saghieh, H., ‘Outside view: the lebanese model’, The Washington Times, 3 March 2005. Solana, J., ‘Jointly does it’, The Economist: The World in 2005, London: The Economist, 2004. Merriman, R., ‘The mirage of state building’, The Jordan Times, 24 March 2005. de Rato, R., ‘No half measures’, The Economist: The World in 2005, London: The Economist, 2004. Tisdall, S., ‘The good luck of traumatised Afghanistan’, The Guardian, 25 February 2005. Solana, ‘Jointly does it’. Tisdall, ‘The good luck of traumatised Afghanistan’. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research

68 Philip Cunliffe

24

25 26 27 28 29

Centre, 2001. ‘The core functions of the Peacebuilding Commission should be to identify countries which are under stress and risk sliding towards State collapse; to organise . . . proactive assistance . . . ; to assist in the planning for transitions between conflict and post-conflict peacebuilding . . .’, United Nations, A More Secure World: Our Shared Responsibility. Report of the Secretary-General’s High Level Panel on Threats Challenges and Change, New York: United Nations, 2004, pp. 83–4. Guangya, W., Statement by Permanent Representative: Informal consultations of the 59 session of the UN General Assembly, 22 February 2005. Accessed at the website of the Permanent Mission of the People’s Republic of China to the United Nations. Interview with author. Fukuyama, State Building, pp. 6–8. Chandler, D., From Kosovo to Kabul: Human Rights and International Intervention, London: Pluto Books, 2002. Welsh, J.M., ‘Introduction’ in Welsh, J.M. (ed.) Humanitarian intervention and international relations, Oxford: Oxford University Press, 2004, p. 2. Chandler, From Kosovo to Kabul. Drawing on the research of leading sociologists and political scientists, the Economist (July 15 1999) captured the basic elements of this political malaise that endured throughout the 1990s in what it dubbed the ‘mature democracies’: In most of the mature democracies, the results [of opinion surveys] show a pattern of disillusionment with politicians...Surveys suggest that confidence in political institutions is in decline as well. In 11 out of 14 countries, for example, confidence in parliament has declined, with especially sharp falls in Canada, Germany, Britain, Sweden and the United States. [T]he evidence of opinion surveys is reinforced by other trends. These include a decline both in the membership of political parties and in the proportion of people who turn out to vote...

30 31 32 33 34 35 36 37 38 39 40

Chandler, From Kosovo to Kabul, p. 63. Ibid., pp. 138–9. Emphasis added. Ibid., pp. 64–8. Füredi, F., The New Ideology of Imperialism: Renewing the Moral Imperative, London: Pluto Press, 1996, p. 114. Bellamy, A., ‘What’s so wrong with human rights?’, International Journal of Human Rights, vol. 6, no. 4, 2002, p. 131. Chandler, D., ‘Rhetoric without responsibility: the attraction of “ethical” foreign policy’, British Journal of Politics & International Relations, vol. 5, no. 3, 2003, p. 13. Chandler, From Kosovo to Kabul, 2002, p. 192. Ayoob, M., ‘Humanitarian intervention and state sovereignty’, The International Journal of Human Rights, vol. 6, no. 1, 2002, p. 81. Chandler, From Kosovo to Kabul, p. 71. Ibid., p. 109. Welsh, J.M., ‘Taking consequences seriously’, in Welsh, J.M. (ed.), Humanitarian intervention and international relations, Oxford: Oxford University Press, 2004, pp. 66–7.

Power without responsibility 69 41 Wheeler, N., ‘Decision making rules and procedures for humanitarian intervention’, The International Journal of Human Rights, vol. 6, no. 1, 2002, pp. 127–38. ˇ ˇ , S. ‘NATO, the left hand of God’, Nettime, 29 June 1999, available 42 Zizek at http://lacan.com/zizek-nato.htm 43 Chandler, From Kosovo to Kabul, pp. 78, 81. 44 Laïdi, A World Without Meaning, p. 111. 45 Woollacott, M., ‘The failure of intervention demands a new modesty’, The Guardian, 16 January 2005. 46 Weiss, T.G., Forsythe, D.P. and Coate, R.A., The United Nations and Changing World Politics, Boulder, CO: Westview Press, 2004, p. 337. 47 Ibid., p. 339. 48 Ignatieff, M., Empire Lite: Nation Building in Bosnia, Kosovo and Afghanistan, London: Vintage, 2003, p. 115. 49 Mayall, cited in Füredi, 1996, op.cit., p. 6. 50 Cited in Chesterman, You, the People, p. 1. 51 Ibid., p. 142. 52 Ibid., p. 45. 53 Laïdi, A World Without Meaning, pp. 35, 7. 54 Lasch, C., The Revolt of the Elites and the Betrayal of Democracy, New York, London: W.W. Norton & Company, 1996, p. 26. 55 Fukuyama, The End of History, 1992. 56 Laïdi, A World Without Meaning, p. 11.

4

The state-building dilemma Good governance or democratic government? David Chandler

Introduction In the twenty-first century the issue of post-conflict state-building and international attempts to prevent and manage the consequences of state failure have become major questions on the international policy agenda. In the wake of 9/11 and the problems of international intervention and administrative regulation in Afghanistan and Iraq, the international engagement in, and management of, state capacitybuilding initiatives has become central to international concerns. Not only are international state-building measures held to be necessary to ensure the protection of peoples from the threat of human rights abuse but also to prevent terrorist cells from operating with impunity where states are too weak to police their borders and enforce the rule of law. This interventionist desire, on the part of leading Western states, to shape the political process and reconstruct state institutions where states are perceived to be ‘failing’ is in marked contrast to the political norms and possibilities of the Cold War period where the geopolitical divide between the Soviet Union and the United States meant there was little international consensus on how states should be governed or on which policies they should follow in the domestic arena. In the second half of the twentieth century, the reaction against colonial practices meant that the United Nations upheld the formal political equality of all sovereign states, regardless of their level of political, economic or social development or of the capacity or willingness of their regimes to uphold the rights of their citizens.1 Changed international power relations and changed political sensibilities have meant that today there is much less of a divide between how states are treated internationally and what they do domestically. Despite the emergence of this new normative framework of international regulation of, and intervention in, the domestic affairs of

The state-building dilemma 71 states, there is a concern – even in leading policy-making circles – that the development and assessment of the effectiveness of international practices has lagged far behind this demand that international actions be undertaken.2 This chapter seeks to analyse the most striking, and potentially the most worrying, aspect of current international state-building policy practices – the downplaying of the centrality of the political process. Whereas in the post-1945 era of decolonisation there was an assumption that state-building could not be accomplished by external powers but depended on state sovereignty and political solutions decided by local actors; today there is an opposite starting-point. Today’s international state-building approaches insist on the regulatory role of international institutions and suggest that locally derived political solutions are likely to be problematic. One consequence of this is that the frameworks of ‘good governance’, overseen and regulated by international bodies, are seen to take precedence over the domestic political process of government. This privileging of governance over ‘government’ is based on the assumption that the political process is a product of state policies rather than constitutive of them. In terms of state-building, democracy and political autonomy are then seen to be the end goal, rather than crucial aspects of the process of state-building itself. The following sections consider this transformation in the assessment of the importance of the political sphere for state-building, consider how this shift in perspective has been shaped by a changed – and de-politicised – understanding of war and conflict, and how the prioritisation of governance over government has fitted with critical and post-positivist trends in academic thinking of international relations and critical security studies. The chapter concludes with a more detailed discussion of the limits of this approach with reference to Bosnia-Herzegovina, which will have been under an international administration tasked with state-building for a decade with the 10-year anniversary of the Dayton agreement in November 2005.

State-building without politics? Prior to the end of the Cold War, the political process was generally understood as key to the creation of stable and viable states. Samuel Huntington’s pioneering late 1960s study, Political Order in Changing Societies, was the key work of political development studies for the last 30 years of the twentieth century.3 His concern was not the creation of states that had the stamp of international approval,

72 David Chandler because the ruling clique supported the policies of those in power in Washington, nor was he trying to design the perfect constitution for export around the world, with a bill of rights and a separation of powers and human rights protections. For Huntington, the key to state stability was a political question of building a domestic consensus, a sense of political community and establishing a government with popular legitimacy. Huntington argued that bureaucratic rule or government by isolated cliques may be able to produce stability in simple pre-industrialised societies but that modernisation and democratic, participatory societies depended on the strengthening and institutionalisation of the political sphere. Political institutions could cohere society only if they emerged out of existing social forces, if they represented real interests and real clashes of interests that then led to the establishment of mechanisms and organisational rules and procedures that were capable of resolving those disagreements.4 It was the links between political institutions, political parties and individuals that were considered key to strengthening the state, both institutionally and in terms of its popular legitimacy. Although seen as a conservative by many commentators today, Huntington is worth returning to by those who argue that international administrators can draw up all the necessary legislation for state-building and post-conflict reconciliation. He argued that the powerful would always be tempted to bypass the political sphere: ‘Inevitably a ruling monarch tends to view political parties as divisive forces which either challenge his authority or greatly complicate his efforts to unify and modernise his country... The modernizing monarch necessarily sees himself as the “Patriot King” who is “to espouse no party, but to govern like the common father of his people” ’.5 The desire of those in power to avoid popular accountability and to legitimise their authority on the basis of being above politics and instead being a direct representative of the ‘public interest’ will sound familiar to anyone who has read the statements of the succession of internationally appointed administrators charged with state-building in the Balkans, for example, the international High Representative in Bosnia or the United Nations Special Representative in Kosovo. Bosnia’s High Representative Carlos Westendorp saw the Bosnian Presidency, Council of Ministers and Parliamentary Assembly as ‘painfully cumbersome and ineffective’ when compared to the alternative possibility of the swift signature of his administrator’s pen.6 Westendorp thrived on being the unaccountable judge of his own policy making, arguing: ‘You do not [have] power handed to you on a platter. You just seize it, if you use this power well, no-one will

The state-building dilemma 73 contest it.’7 Lord Paddy Ashdown, the current incumbent of the Bosnia post, has used very similar phraseology, for example, in his inaugural speech of May 2002, stating, I have concluded that there are two ways I can make my decisions. One is with a tape measure, measuring the precise equidistant position between three sides. The other is by doing what I think is right for the country as a whole. I prefer the second of these. So when I act, I shall seek to do so in defence of the interests of all the people of Bosnia and Herzegovina, putting their priorities first.8 For Lord Ashdown, as for his predecessors, rather than facilitating consensus building between the three main political parties – representing Bosnian Muslims, Bosnian Serbs and Bosnian Croats – his own personal perspective of ‘what I think is right’ was held to directly coincide with the interests of the population as a whole. This high-handed approach, which has marked the 10 years of international regulation in the tiny post-war Bosnian state, is at the centre of the state-building dilemma discussed here: the dilemma that imposing good governance policy practices, alleged to be in the interests of all, inevitably means restricting the importance of the political sphere of political party competition and policy making by elected representatives. This dilemma is increasingly posed in the post-Cold War era when international actors have a much freer hand to impose conditions upon and to directly intervene in states which are judged to be at risk of failure or to have failed. The imbalance of power between intervening actors and those on the ground has meant that while this dilemma has been acknowledged, there is currently little thought given to the problems caused by this marginalisation of the political sphere. For international administrators and policy makers, it is well nigh inconceivable that local actors could be better placed to take their own societies forward than international ‘experts’. For the international state-builders in Washington, London and Brussels the political sphere is a problem for strengthening state capacity rather than central to it. To return to Huntington, The administrator opposed to parties accepts the need to rationalize social and economic structures. He is unwilling, however, to accept the implications of modernization for broadening the scope of popular participation in politics. His is a bureaucratic model; the goal is efficiency and the elimination of conflict.

74 David Chandler Parties simply introduce irrational and corrupt considerations into the efficient pursuit of goals upon which everyone should be agreed. The administrative opponent of parties may wear any dress, but he is less likely to be in mufti than in uniform.9 For Huntington, leaving aside the acuteness of his observation on the link between the military mindset and the administrative one – captured well by Bosnia’s administrator-in-chief Paddy Ashdown the ex-Royal Marine Commando who has never enjoyed elected government office – the point is that hostility to the political sphere is essentially counterproductive. While kings and bureaucrats, who understand their legitimacy as existing independently of society, are resistant to acknowledging it; it is only the political process, and party formation and competition in particular, that has the potential to bind society beyond disparate social groups, creating a loyalty to a state-based project which transcends parochial and particularist groupings.10 The more autonomy given to the political process, the more political parties and interest coalitions are forced to overcome the fragmented nature of their societies and build links between different social constituencies. Conversely, the more restricted the political sphere is, the less responsibility and accountability elected representatives have and the less likelihood there is of political institutions being able to build social bonds in divided societies. Huntington’s defence of the autonomy of the political sphere is rarely seen as relevant to today’s policy practices in international administration. In fact, where his 1960s work is referred to, his points about the importance of strong state institutions are taken out of context and these institutions are seen as being able to develop in isolation from real political processes. A leading example of this approach is that of Roland Paris in his influential book, At War’s End, published in 2004.11 Paris critiques the ‘liberal peace’ thesis on the basis that international policy, which sees a market economy and liberal democracy as the two preconditions for a stable peace, misunderstands the process of transition from war to peace. Paris argues that it is necessary to have ‘Institutionalization before Liberalization’, that is, to focus on strong institutions, the rule of law and human rights protections before giving post-conflict societies the right to have a say in their own affairs. He argues that the political process of democratic competition in a weak or failing state, or one making a transition from war to peace, is likely to be counterproductive. This is because party political competition is based on the idea of a conflict of interests, this process tends to exacerbate conflict and tension in

The state-building dilemma 75 society rather than ameliorating it, in a context where fragile or failing states do not have the social, economic and legal mechanisms necessary for ensuring that conflicts can be managed and contained. Paris argues that democracy is fine for developed stable states but is destabilising for states that are failing or are making the transition from war to peace. He asserts that elections are important, but secondary. The process of political reconciliation and the development of a shared sense of political community should precede competitive elections: ‘Peacebuilders should proceed with elections only when there is evidence that “moderate parties” . . . have sufficient popular support . . . to prevail over “immoderate parties” at the polls.’12 This interventionist project attempts not merely to reconstruct a state but also to transform the mindsets of the inhabitants of a post-conflict state. This latter task is to be undertaken through a number of means: civil society building; the encouragement of cross-cutting links and interests; international attention to educational curricula from primary school through to university level; the strict control and regulation of the media; trauma counselling and other therapeutic practices and through punishing political parties or elected representatives held to be ‘obstructing’ progress. Clearly this state-building agenda is an ambitious one, but one that in many ways reflects the existing policy practices of international institutions, states and non-governmental organisations on the ground in many parts of the world.13 There is not the space here to engage in a discussion about the efficiency of such interventionist measures;14 rather the point to be stressed is the increasingly commonplace assumption that democracy is good for the Western powers but tutelage is better for states judged to be ‘under stress’, at ‘risk of failure’ or in post-conflict ‘recovery’. This assumption rests on a number of prior assumptions regarding the role of the political process. The argument that it is possible to create the institutional framework of a strong and stable state before liberalisation – that is, opening up the political process to democratic competition – suggests that states and citizens can be socially engineered by correct practices of external regulation. The assumption is that the problems of politics can be resolved outside the realm of the political, in the realms of law, social policy and administration.15 It would seem, as Alejandro Bendaˇna notes, that ‘good governance or state building . . . has deep ideological presumptions which purport to offer technical solutions to what in essence are political problems’.16 It is this view of ‘peace without politics’ that imbues much of the current discussion around state-building practice.17 In Bosnia, Kosovo, Iraq and other parts of the world international administrators argue

76 David Chandler that the rule of law and even ‘respect for democracy’ can be developed before elected representatives can assume political responsibility. In the wake of the US-led Iraq occupation, High Representative Ashdown toured Western capitals arguing that the ‘rule of law’ had to precede elections and political liberalisation.18 This view of ‘sequencing’, which relegates the political process behind that of law, policing and administration, inverts the traditional understanding of the modern rule of law, derived from liberal democratic contract theory of consent, in contrast to the arbitrary and unaccountable rule-making of elites.19 While laws could be issued by right wing or Soviet-style dictatorships, that also had the prisons and the police to enforce them, these societies were not understood to be operating under the rule of law since law did not derive from popular consent but from the power of coercion. The assertion that the rule of law should come before political liberalisation heralds a fundamental critique of one of the cornerstones of liberal democratic theory. This is the state-building dilemma. External construction of political institutions on the basis of the norms of good governance often leaves little room for state institutions to develop their links with societal forces. Good governance is presented as a technical solution to the problems of the political sphere, reducing the political process to the management of policy ‘outputs’ rather than one of facilitating policy ‘inputs’. Good governance has become a way of bypassing the state’s links to society rather than strengthening them. This has meant that external state-building has been more a process of external regulation and international control rather than one of capacity building. Ironically, rather than strengthening states, external state-building has gone hand-in-hand with greater regulatory controls by international institutions or regulation by ad hoc groups of self-selecting coalitions of the willing, such as the Contact Group, Stability Pact or Peace Implementation Council (the ad hoc coalition to whom the Bosnia’s ‘international’ High Representative is accountable).

War without politics? The new international dispensation for military intervention and the undermining of state sovereignty in the case of gross human rights abuses and the growing demand for intervention to address the threats posed by ‘failed states’ has been reinforced by a growing tendency for international theorists and international security actors to perceive internal conflicts in the non-Western world as crimes to be judged and righted rather than as political conflicts to be mediated.20

The state-building dilemma 77 Kalevi Holsti captured this new perception of conflict as ‘wars of the third kind’ where non-Western actors fought not for social and political interests, as traditionally understood, but through the desire for different community boundaries and a strengthening of a particularist identity. He made the key point that these conflicts could not be dealt with in the traditional manner of dealing with inter-state conflict: ‘In these wars, ordinary cost-benefit analyses that underlie wars as a “continuation of politics by other means” no longer apply.’21 War in the non-Western world is seen as distinct from war waged by Western powers; in the former case war no longer serves a legitimate political purpose; it is not a means to an end, rather it is an end in itself.22 According to Antonio Cassese, former president of the international war-crimes tribunal at The Hague, for the people of non-Western states it is apparently ‘less a noble clash of soldiers than the slaughter of civilians with machetes or firing squads, the mass rape of women in special camps, the cowardly execution of non-combatants’.23 As a human rights campaigners’ handbook Crimes of War: What the Public Should Know asserts in its introduction, Wars [involving non-Western states] today increasingly are fought not between armies where officers are bound by notions of honour but by fighters . . . who are not soldiers in the conventional sense of the word. The goal of these conflicts is often ethnic cleansing – . . . not the victory of one army over another.24 No longer connected with rational political interests, it appears that conflict has a dynamic of its own. Martin Shaw makes the point that for non-Western societies ‘genocide may be discerned, therefore, in relatively limited mass killing’.25 He argues that ‘the concept of “genocidal massacre” should be proposed to cover smaller incidents, which are often a prelude to a larger-scale genocide’.26 The use of the emotive term ‘genocide’ to describe these conflicts established them as qualitatively different from the slaughter of wars in which Western states were involved. Unlike war, which appears relatively more civilised in comparison, genocide is regarded as either inherently atavistic or irrational or as morally evil. This re-representation of non-Western conflict as driven by atavistic desires of ethnic identity, economic crime and human rights abuse, rather than rational causes, has been held to illustrate the incapacity of non-Western states and peoples and the need for international intervention. Mary Kaldor developed Holsti’s themes with the concept

78 David Chandler of ‘New Wars’, which has become the ideological template for current international security regimes.27 The concept of new wars takes the politics out of armed conflict in two ways; first the conflict or crisis in the non-Western state is held to be the product of domestic or internal problems which are exacerbated by rapacious or criminal elites which have no political legitimacy. Therefore the United Nations’ Cold War approach of neutrality and respect for peace agreements drawn up by the parties to the conflict no longer stands; instead, international actors are held to be necessary to create and safeguard a just peace. Second, and more importantly, politics is taken out of conflict by portraying the intervention (military or otherwise) of Western powers as above politics. There is no self-interest at work in external intervention; rather it is equated with the neutrality of policing, merely enforcing international or ‘cosmopolitan’ norms and laws. Rather than war, there are crimes and human rights abuses (conflict in non-Western world) or there is policing and law enforcement (armed conflict undertaken by Western powers).28 Neither non-Western state ‘failure’ nor the international response to this are conceived in traditional terms of political interests. This discursive dichotomy, between the failed state and the post-national or post-political intervention, in one move, delegitimates the political process of the state intervened in while at the same time setting up the intervening powers as being beyond or above political interests. Rather than being the Cold War neutral observers to a legitimate conflict of interests, today’s international interveners assume on the ground the self-appointed roles of judge, jury and administrator in a situation where there are now alleged to be no legitimate interests which should be taken into account.29 The relationship between external intervening powers (increasingly seen as legitimate) and domestic political actors (now increasingly portrayed as pursuing illegitimate interests) has been transformed through a succession of innovative international policy shifts since the end of the Cold War. At the heart of this transformation has been the United Nations itself, which has extended its remit and reinterpreted the formal restrictions of the UN Charter while increasingly giving free reign to self-selected ‘coalitions of the willing’ to set their own conditions on when and how interventions should take place and be formally brought to an end.30 Over the last 15 years a process of international administrative oversight and intervention, which developed in a relatively arbitrary and ad hoc way, has been increasingly institutionalised. At the end of 2004, the Report of the UN Secretary General’s High-Level Panel on

The state-building dilemma 79 Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, advised the establishment of a Peacebuilding Commission to oversee the international administration of failing and post-conflict states.31 According to the UN advisers and the Secretary General Kofi Annan, a select committee of the ‘great and the good’ from around the world, acting under UN auspices, should have the requisite skills to help coordinate a panoply of international intervention, from early warning, through preventative action and onto post-conflict transitional administrations, where states are ‘under stress or recovering from conflict’.32

The ‘ethical turn’ in international theorising The rejection of the domestic political sphere as a constitutive sphere, in which social and political bonds are constituted and strengthened and the re-representation of this sphere as purely one of division and conflict has received relatively little critical evaluation from academic commentators involved in international relations and international security studies. In fact, since the end of the Cold War, new approaches to theorising security have stressed that states are part of the problem rather than part of the solution to conflict and political and social division.33 Many of these critical approaches draw on post-positivist theorising and follow Foucault’s widely cited inversion of Clausewitz, seeing ‘politics as a continuation of war by other means’.34 The existence of states, in this reading, is the result of war and domestic social conflict, with the domination by victorious elites being enforced and reproduced by political processes of representation rather than military force. For these theorists, states inevitably engage in war and internal conflict as they are based on domination and relations of exclusion and exclusivity.35 For critical, post-positivist and normative theorists of international relations and international security, the political sphere is the problem to be addressed, not the sphere where solutions are to be found. Rather than starting from politics, from social forces and the clash of interests in society, many theorists start from ethics and norms and then seek to derive (non-exclusionary) political frameworks from this basis.36 The approach of privileging ethics above the political process, central to the ethical turn in international theorising, fits closely with international state-building practices which privilege bureaucracy, law and administration above the political and may in part explain why there is little critical focus on these developments in many academic circles.37 Where ‘realist’ theorists often highlighted the autonomy of

80 David Chandler the political and the limits of bureaucratic attempts to impose law and administration over clashes of power and interest, today’s intellectual fashion is to focus on the indeterminacy and socially constructed nature of power and interest, emphasising the importance of norms and law.38 The new focus of ‘human security’ doctrines is no longer on the defence of states but on the rights of individuals wherever they might be in the world. This is construed to be a moral or an ethical duty placed upon the powerful to take responsibility for the protection of the rights of those elsewhere.39 The 2004 Barcelona Report of the Study Group on Europe’s Security Capabilities, A Human Security Doctrine for Europe, argues, for example, that: ‘A human security approach for the European Union means that it should contribute to the protection of every individual human being and not focus only on the defence of the Union’s borders, as was the security approach of nation-states.’40 Here it is assumed that the European Union has risen above the politics of state interests and that, as a post-national or post-political constellation, it is capable of judging upon and acting in the interests of ‘every individual’ regardless of which state they happen to be a citizen of. Robert Cooper, policy advisor to UK Prime Minister Tony Blair and the EU High Representative for CFSP Javier Solana, has received widespread praise for his projection of Western power in the depoliticised terms of the new security discourse – of ethics and responsibility rather than national interest and power – in his assertion of the division of the world into post-modern, modern and pre-modern states. Postmodern states, such as the European powers, and to a certain extent the United States, have rejected the idea of national interests as a motivation for foreign policy and are driven by domestic concerns of the values of the ‘good life’, such as democracy and justice – they have no traditional political interests at stake in intervention. At the same time, the parts of the world where states are failing and interventionist policies are necessary cannot morally be treated as political equals. As Cooper states, the post-modern state: needs to get used to the idea of double standards. Among themselves, the post-modern states operate on the basis of laws and open co-operative security. But when dealing with more old-fashioned kinds of state outside the post-modern limits, Europeans need to revert to the rougher methods of an earlier era – force, pre-emptive attack, deception, whatever is necessary . . . In the jungle, one must use the laws of the jungle.41

The state-building dilemma 81 The ‘double standards’ suggested by Cooper, reflect those of the new international hierarchy whereby political legitimacy, sovereign equality and the rights of non-intervention are the preserve of the enlightened post-modern states and the ‘pre-modern’ failed and failing states are assisted in state-building tasks under the auspices of a new ‘post-modern version of empire’.42 The irony of today’s state-building, based on the good governance of ‘post-modern empire’ rather than political autonomy, is that the states whose capacities are being built tend to be the Western ‘postmodern’ states which have the will and capacity to state-build other countries, while those states which are the subjects of state-building are increasingly dominated by external interests. Rather than statebuilding reinforcing the UN order by creating a ‘mature anarchy’ of strong independent states capable of managing international affairs,43 a new hierarchy which can only undermine the current UN framework of international relations is arising. This new hierarchy has received the blessing of the United Nations itself, as evidenced by the UN High-Level Panel Report, referred to earlier.44

Politics as a barrier to peace Today’s call for state-building occurs in a context of much diminished expectations for non-Western states in the wake of the perceived failure (for the most part) in the experiment in post-colonial independence.45 The dominant consensus is that this failure lies largely with the political sphere in these ‘failing states’ – positing the solution as one of good governance overseen by external intervention. There is a tendency for international interveners to separate statebuilding from the process of domestic politics in the state intervened in; seeing state-building as a ‘scientific’, technical or administrative process which does not require a process of popular consensus building to give the target population a stake in policy making. Where the postSecond World War external administrations of Germany and Japan engaged the local populations in a major project of social, economic and political reconstruction, and through doing so won a high level of popular legitimacy and support, international administrations, such as those in Bosnia, Kosovo and Iraq, have excluded all but token local input into the making and implementation of policy. In the Balkans, the international administrations have not just operated above the sphere of representative politics but have also consistently criticised the programmes and personnel of the main political parties and argued that both the Bosnian and Kosovan

82 David Chandler electorate are not yet to be trusted with a meaningful vote. Rather than deriving policy from local concerns and needs, the legislative process has been driven by technical and administrative experts in Brussels and Washington. Policies have then been imposed through the international Office of the High Representative in Bosnia and the UN’s head of mission in Kosovo. Locally accountable political leaders then must accede to these demands, under the threat of being dismissed on the grounds of ‘obstruction’. There has been a trend towards granting external administrative powers greater and greater remits of authority. This process is reflected in the Bosnian example, where close international oversight was intended to last for 1 year only, until the first state elections in September 1996. However, 10 years on from Dayton, not one piece of substantial legislation has been devised, written and enacted by Bosnian politicians and civil servants.46 This is in marked contrast to Japan and West Germany where, in the first case, the external occupation lasted nearly 7 years and, in the latter, there was 4 years of occupation and full control over industrial and security policy was returned 10 years after the end of the war.47 A decade on from the Dayton settlement of the Bosnian conflict, the lack of political autonomy for Bosnian representatives, and of political accountability for Bosnian citizens, is possibly the most remarkable feature of current state-building practices, in this tiny and fragmented state. However, the lack of democracy in Bosnia has posed little barrier in the negotiations over the accession process towards EU membership, in fact, the European Union has given its formal blessing to the maintenance of a highly restricted political sphere, with the establishment of the EU’s Special Representative as the international High Representative in 2002. There would appear to be a clear international consensus that, for state-building to be a success, rule by externally appointed bureaucrats is preferential to rule by Bosnian representatives accountable to Bosnian citizens. It could be argued that the 10 years of state-building experience in Bosnia serve as a symbol of the return of liberal faith in the science of law and administration, reminiscent of the inter-war period of the last century. This is evidenced in the return of the idea of conditional sovereignty, reminiscent of the Versailles restrictions on the sovereignty of the new states established in central and eastern Europe, and in the renewed faith in the powers of international conferences and committees to establish the borders of states (the European Community Badinter Commission did this for the former Yugoslavia) and to appoint external governors (as the Peace Implementation Council did for

The state-building dilemma 83 Bosnia and the United Nations for Kosovo). There is without doubt a growing consensus that international experts and bureaucrats can better govern a country than politicians accountable to the people who have to live with the consequences of their policy making. However, in our post-colonial era, there is little support for the return of traditional empire, for a new network of colonial protectorates bringing ‘order’ to the regions of the world threatened by failing states. Rather, new international administrative regimes are, in the terminology of Michael Ignatieff, most often run on the basis of ‘Empire Lite’.48 International administrators are loath to take any responsibility for, or to be held to account for, the policies they pursue or the outcome of their interventions into the political process. At the same time, local actors are denied the political autonomy to reach their own compromise solutions and assume accountability themselves. Bosnia highlights the contradictions of having regularly contested elections at state, entity and local levels and, alongside this, the existence of a parallel administration headed by unaccountable international appointees with the power to draw up and impose legislation and sack elected officials. Uniquely, the political process is squeezed from above and below. There is no accountability for policy making either domestically or internationally. In this sense the borders between the domestic and international have been effectively erased. However, the external regulation of Bosnian people as ‘humans’, rather than as ‘citizens’ with rights of political equality, has done little to overcome the ‘politics of exclusion’. Bosnian political representatives who have been elected are accountable to international overseers rather than to Bosnian voters, reducing political institutions to irrelevant talking shops. In this context, elections are not a judgement on government policies; in fact, the inverse relationship is in play. Elections are openly seen as educational exercises where the Bosnian voters submit themselves to the judgement of the international administrators as to their political capacities as citizens. A few international analysts have stood out against the view that the political process can be cut short or replaced by bureaucratic and administrative edict. Amitai Etzioni and Francis Fukuyama have, for example, questioned ‘over-ambitious societal engineering’.49 However, their critique, in fact, agrees on the essentials with the current assumptions behind extensive interventionist practices of international state-building, suggesting that the process entails extensive external regulation, but differs in the importance attached to the ambitious aims involved. Critics who suggest that democracy

84 David Chandler and state-building necessarily imply autonomy – and believe that the good governance approach to state-building can only have limited success are much thinner on the ground. Gerald Knaus and others at the Brussels-based think tank, the European Stability Initiative, have attempted to initiate a debate on the ‘Travails of the European Raj’ in Bosnia, highlighting the limitations of the high-handed approach taken to post-conflict reconstruction.50 William Bain has also challenged the ‘New Paternalism’ of the failed states discourse and highlighted the return of a more hierarchical world order with the institutionalisation of new forms of political inequality between states and between individuals.51 Simon Chesterman’s study of post-conflict international administrations points out that today’s international rule over Bosnia and Kosovo provides even less local accountability than the last century’s mandate system or that under the presently defunct UN Trusteeship Council.52 Chesterman’s in-depth comparative study also concludes that current international state-building practices are prone to a number of fundamental flaws which stem from the inequalities built into the relationship of political pedagogy and external regulation: the means are often inconsistent with the declared ends; the resources are often inadequate to achieve the ends sought and, finally, much policy making is more declaratory than practical, being largely irrelevant to the tasks at hand.53

Conclusion It is necessary to extend this discussion of the questions and contradictions raised by international state-building in the specific ‘post-imperial’ context of our times. In the case of Bosnia, for example, it is undoubtedly true that it is possible to have peace, through mechanisms of external governance and the restriction of the political sphere.54 Dayton itself established that peace could be achieved through the external pressure of military intervention and economic and political sanctions. This external pressure created a state, but one with no real basis in Bosnian society and little popular legitimacy. Since Dayton, external administrators have built roads and schools, issued banknotes, restructured economic institutions, provided incentives for refugee return, banned political parties or removed their elected leaders and pushed through a large raft of policy legislation covering everything from education and social services to policing and the judiciary. The relatively successful assertion of external influence is hardly surprising considering the

The state-building dilemma 85 small size of the Bosnian state and its dependency on external assistance. However, it is also becoming apparent that external state-building through good governance packages and expertise requires more than the largess – and coercive power – of external benefactors. Ten years after Dayton, the Bosnian state still lacks a secure basis in Bosnian society and commands little social or political legitimacy. While the international administration has been able to institute a large number of administrative and policy reforms to meet the externally decided needs of good governance, it has been unable to establish legitimate Bosnian institutions of government – that is, those institutions which are crucial to endow the Bosnian state with the capacity to overcome the divisions of the war and take society forward. In this respect, the international experiment in state-building without the political process of government has revealed major shortcomings.

Notes 1 See for example, United Nations General Assembly resolution 1514 (XV). Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, available at http://www.unhchr.ch/html/ menu3/b/c_coloni.htm 2 See for example, RAND Corporation, America’s Role in Nation-building: From Germany to Iraq, Santa Monica, CA: RAND, 2003; The Conflict, Security and Development Group, A Review of Peace Operations: A Case for Change, London: Kings College, 2003; Lund, M., ‘What Kind of Peace is Being Built?: Taking Stock of Post-Conflict Peacebuilding and Charting Future Directions’, Discussion Paper, Ottawa: International Development Research Centre, 2003, available at http://web.idrc.ca/uploads/user-S/ 10527469720lund_final_mar_20.pdf 3 Huntington, S., Political Order in Changing Societies, New Haven, CT: Yale University Press, 1968. 4 Ibid., p. 11. 5 Ibid., p. 403. 6 Office of the High Representative, Bulletin, No. 62, 11 October 1997. 7 Rodriguez, J., ‘Our Man in Sarajevo’, El Pais (trans. Office of the High Representative), 29 March 1998. 8 Ashdown, P., ‘Inaugural Speech by the new High Representative for Bosnia & Herzegovina’, Bosnian State Parliament, 27 May 2002, available at http://www.ohr.int/ohr-dept/presso/presssp/default.asp?content_id=8417. See also discussion in Chandler, D., ‘Bosnia’s New Colonial Governor’, The Guardian, 9 July 2002, available at http://politics.guardian.co.uk/ comment/story/0,9115,751918,00.html 9 Huntington, Political Order, p. 404. 10 Ibid., p. 405. 11 Paris, R., At War’s End: Building Peace after Civil Conflict, Cambridge: Cambridge University Press, 2004.

86 David Chandler 12 Paris, R., At War’s End: Building Peace after Civil Conflict, Cambridge: Cambridge University Press, 2004, pp. 189–90. 13 See, for example, the state-building agendas laid out by the UN advisory panels, for example, the Report of the Panel on UN Peace Operations (Brahimi Report). (August 2000), A/55/305 – S/2000/809, available at http://www.un.org/peace/reports/peace_operations/ and the Report of the International Commission on Intervention and State Sovereignty. The Responsibility to Protect, Ottawa: International Development Research Centre, 2001. 14 See, for example, Chandler, D., Bosnia: Faking Democracy after Dayton, London: Pluto Press, 2nd edn, 2000. 15 The potential hubris of the desire to externally reshape ‘failed states’ in isolation from social forces, is captured in the RAND Corporation recommendations for Iraq, which suggest that rather than co-opt existing Iraqi institutions, the sounder approach is that of a ‘root and branch overhaul of state and political structures’, involving ‘the creation of wholly new organizations at the local and national levels and the recruitment, training, and management of new staff’, RAND Corporation, America’s Role in Nation-buildings, p. 205. 16 Bendanˇa, A., ‘From Peace-building to State building: One Step Forward and Two Backwards’, presentation at Nation-building, state-building and International Intervention: Between ‘Liberation’ and Symptom Relief, CERI: Paris, 15 October 2004. See also, Demmers, J. et al., Good Governance in the Era of Global Neoliberalism: Conflict and Depolitisation in Latin America, Eastern Europe, Asia and Africa, London: Routledge, 2004. 17 See Chandler, D., ‘Introduction: Peace without Politics?’, International Peacekeeping, vol. 12, no. 3, 2005. 18 See, for example, Ashdown, P., ‘What Baghdad can learn from Bosnia’, The Guardian, 22 April 2003 and Ashdown, P., ‘Broken Communities, Shattered Lives: Winning the Savage War of Peace’, Speech to the International Rescue Committee, London, 19 June 2003, available at http://www.ohr.int/print/?content_id=30130 19 See further, Chandler, D., ‘ “Imposing the Rule of Law”: The Lessons of BiH for Peacebuilding in Iraq’, International Peacekeeping, vol. 11, no. 2, 2004, pp. 312–33. 20 See the excellent discussion in Columbo, A., ‘Asymetrical Warfare or Asymetrical Society? The Changing Form of War and the Collapse of International Society’, in A. Gobbicchi (ed.), Globalization, Armed Conflicts and Security, Rome: Cemiss-Rubbettino, 2004, pp. 111–27. 21 Holsti, K., The State, War, and the State of War, Cambridge: Cambridge University Press, 1996. 22 See also Shaw, M., On Slaughter: From War to Genocide, London: Polity Press, forthcoming, chapter 1 (draft), available at http://www.sussex.ac.uk/ Users/hafa3/slaughter1.htm 23 Cassese, A., ‘Reflections on International Criminal Justice’, Modern Law Review, vol. 61, no. 1, 1998, p. 5. 24 Gutman, R. and Rieff, D., ‘Preface’, in R. Gutman and D. Rieff (eds), Crimes of War: What the Public Should Know, New York: W. W. Norton, p. 10. 25 Shaw, On Slaughter: From War to Genocide. 26 Ibid.

The state-building dilemma 87 27 Kaldor, M., New and Old Wars: Organized Violence in a Global Era, London: Polity Press, 1998. 28 See further, Chandler, D., From Kosovo to Kabul: Human Rights and International Intervention, London: Pluto Press, 2002. 29 If there are any legitimate interests these will not be those of parties to the conflict but rather those of selected ‘victims’, or in Kaldor’s words those identified to be ‘local advocates of cosmopolitanism’ or ‘islands of civility’, see Kaldor, New and Old Wars, p. 120. 30 Holsti, The State, War, and the State of War, pp. 190–1. For an excellent survey see Chesterman, S., Just War or Just Peace?: Humanitarian Intervention and International Law, Oxford: Oxford University Press, 2002. 31 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, New York: United Nations, 2002, available at http://www.un.org/secureworld/ 32 Ibid., p. 83. 33 See for example, Booth, K., ‘Security and Emancipation’, Review of International Studies, vol. 17, no. 4, 1991, pp. 313–26; Krausse, K. and Williams, M.C. (eds), Critical Security Studies, London: UCL Press, 1997; Booth, K. (ed.), Critical Security Studies and World Politics, Boulder, CO: Lynne Reinner, 2005. 34 Foucault, M., Society must be Defended: Lectures at the Collège de France 1975–76 (trans. D. Macey), London: Allen Lane/Penguin, 2003. 35 See, for example, Campbell, D., National Deconstruction: Violence, Identity and Justice in Bosnia, Minneapolis, MN: University of Minnesota Press, 1998; Keane, R., Reconstituting Sovereignty: Post-Dayton Bosnia Uncovered, Aldershot: Ashgate, 2002. 36 See, for example, Falk, R., On Humane Governance, Cambridge: Polity Press, 1995; Archibugi, D. and Held, D. (eds), Cosmopolitan Democracy: An Agenda for a New World Order, Cambridge: Polity Press, 1995; Linklater, A. The Transformation of Political Community, Cambridge: Polity Press, 1998. 37 Kenneth Minogue highlights the despotic dangers of ‘political moralism’, which sees autonomy and independence – that is, the political sphere – as a barrier to ethically derived notions of justice and argues that this approach to politics is especially strong in discussions of international relations. See, for example, Minogue, K., Politics: A Very Short Introduction, Oxford: Oxford University Press, 1995, pp. 104–5. 38 For realist critiques of the privileging of law and administration above the political, see, for example, the classic texts, Carr, E.H., The Twenty Years’ Crisis, 1919–1939 Basingstoke: Palgrave, 2001 and Morgenthau, H.J., Politics Among Nations: The Struggle for Power and Peace, New York: McGraw-Hill Education, 1992, see especially chapter 3. For a more in-depth discussion, see Chandler, D., Constructing Global Civil Society: Morality and Power in International Relations, Basingstoke: Palgrave, 2004. 39 See, for example, International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 2001. 40 Study Group on Europe’s Security Capabilities, A Human Security Doctrine for Europe, Barcelona, 15 September 2004. p. 9, available at

88 David Chandler

41 42 43 44

45 46

47

48 49

50

51 52 53 54

http://www.lse.ac.uk/Depts/global/Human%20Security%20Report%20F ull.pdf Cooper, R., The Breaking of Nations: Order and chaos in the Twenty-First Century, London: Atlantic Books, 2003, p. 62. Ibid., p. 70. See further Buzan, B., People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era, Harlow: Person, 2nd edn, 1991. Report of the Secretary General’s High-level Panel on Threats, Challenges and Change; see also Chandler, D., ‘The Responsibility to Protect: Imposing the “Liberal Peace”?’, International Peacekeeping, vol. 11, no. 1, 2004, pp. 59–81. See, for example, Jackson, R., Quasi-states: Sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1991; also Holsti, The State, War, and the State of War. For further reading on the post-Dayton international regime see the website of the International Office of the High Representative, available at http://www.ohr.int/; See also Chandler, Bosnia’s New Colonial Governor; Cousens, E.M. and Cater, C.K., Toward Peace in Bosnia: Implementing the Dayton Accords, Boulder, CO: Lynne Reinner, 2001; Sololovic, ´ D. and Bieber, F. (eds), Reconstructing Multiethnic Societies, The Case of Bosnia Herzegovina, Aldershot: Ashgate, 2001; Bose, S., Bosnia after Dayton: Nationalist Partition and International Intervention, London: Hurst & Co, 2002. For background on post-war state-building in Germany and Japan, see for example, Dower, J.W., Embracing Defeat: Japan in the Wake of World War II, New York; Norton, 1999; Williamson, D.G., Germany from Defeat to Partition, 1945–1963, London: Longman, 2001. Ignatieff, M., Empire Lite: Nation-building in Bosnia, Kosovo and Afghanistan, London: Vintage, 2003. Etzioni, A., ‘A Self-Restrained Approach to Nation-Building by Foreign Powers, International Affairs, vol. 80, no. 1, 2004, p. 15; see also Fukuyama, F., State Building: Governance and World Order in the Twenty-First Century, London: Profile Books, 2004, p. 123. See, for example, Knaus, G. and Martin, F., ‘Lessons from Bosnia and Herzegovina: Travails of the European Raj’, Journal of Democracy, vol. 14, no. 3, 2003, pp. 60–74; see also the European Stability Initiative website at http://www.esiweb.org/ Bain, W., Between Anarchy and Society: Trusteeship and the Obligations of Power, Oxford: Oxford University Press, 2003. Chesterman, S., You, the People: the United Nations, Transitional Administration, and state-building, Oxford: Oxford University Press, 2004, p. 45. Ibid., pp. 238–49. This is a best case example, in Kosovo the internationally administered peace has not facilitated the return of ethnic-minority refugees, as in Bosnia, while Iraq under international administration failed even to achieve peace.

5

Witnessing the demise of the developing state Problems for humanitarian advocacy Vanessa Pupavac

Introduction: the rise of humanitarian advocacy In 1999 Medecins Sans Frontieres (MSF) received the Nobel Prize. The organisation has pioneered contemporary humanitarian advocacy under the motto ‘Care for and testify’, challenging traditional humanitarianism’s reserve. MSF’s award demonstrates how humanitarian advocacy has been recognised internationally since the end of the Cold War. Humanitarian organisations have not simply become more involved in lobbying for greater official aid and campaigning to increase private donations (in Band Aid-type appeals), but have sought to intervene directly in international politics. MSF humanitarians prominently appealed in the Western media for military intervention in Bosnia and its stance has been adopted widely in the humanitarian sector. Officials from Save the Children were among those lobbying Western governments to intervene militarily in Kosovo. Save the Children’s work has always been underpinned by children’s rights advocacy, but this form of advocacy was new. More recently Oxfam, which has defined itself as a development organisation since the 1960s, has appealed for more robust responses to the Darfur crisis. Oxfam now ranks its commitment towards advocacy as equal to its commitment to development and emergency relief. Oxfam’s direction indicates how development NGOs have taken up more advocacy work and campaigning on human rights. Indeed development activities in the rights-based development model increasingly take the form of advocacy work. Oxfam has become more closely involved in campaigns such as debt relief or international trade reform that previously it might have left to its sister organisation Third World First. British aid agencies have come together to campaign under banners such as Make Poverty History as well as conducting their own advocacy work. MSF is currently prominently involved in

90 Vanessa Pupavac a campaign to make cheap generic drugs available to developing countries. Furthermore human rights organisations such as Amnesty International have also expanded their remit to include advocacy over international humanitarian law and begun cooperating with humanitarian organisations. Yet again human rights organisations such as the Aegis Trust or Genocide Watch have emerged which have primarily an advocacy role and do not conduct individual casework. Humanitarian advocacy was embraced as part of a fresh approach when the crises immediately following the Berlin Wall collapse cast doubt on traditional humanitarianism. Humanitarian advocacy promised to reinvigorate a demoralised humanitarian sector and forge new partnerships with populations in the South. The new humanitarianism has been preoccupied with the consequences of humanitarian aid, but what are the consequences of humanitarian advocacy and its impact on traditional relief work? This chapter discusses problems of humanitarian advocacy in an unequal world, drawing upon debates from British humanitarian politics. First the chapter considers the crisis of humanitarianism within the wider crisis of purpose in international politics, which encouraged humanitarian advocacy, linking it to the West’s own political crisis at the end of the Cold War. Humanitarian advocacy in the last 15 years has drawn attention to how humanitarian crises have been precipitated by state policies and has sought international intervention to protect people. Accordingly humanitarian advocacy has become associated with challenging the national sovereignty of the developing state. However, rather than the strong sovereign state lying behind today’s humanitarian crises the chapter contends that the weak state is the problem. In challenging the authority of the developing state, humanitarian advocacy has complimented international politics and economics. First humanitarian advocacy has complimented international economic policies hollowing out the developing state and abandoning national development, thereby undermining the position of developing states within the international system. At the same time humanitarian advocacy for military intervention has complimented international political developments challenging the sovereign equality of states. The chapter suggests that the existing humanitarian advocacy paradigm risks legitimising the reassertion of an unequal international order, while compromising humanitarianism itself. The chapter then discusses what humanitarian advocacy might be more appropriate in the contemporary world to address the injustices manifested in humanitarian crises. British non-governmental organization (NGO) advocacy work on poverty, international trade or debt

Problems for humanitarian advocacy 91 relief continues to enjoy a radical reputation and has not caused the same contentions within organisations as humanitarian advocacy for military intervention. Yet, how groundbreaking or useful is this advocacy work? Beneath the headlines of making poverty history the proposed policies seem to echo Britain’s official line. In other words, NGOs appear to be cheerleaders for British government aid policies already being rolled out. Meanwhile, humanitarianism’s unique role is being lost. The chapter concludes that humanitarian organisations should focus on securing universal humanitarian relief and how to regain humanitarian access on the basis of consent. In a world of unequal states, it is vital for advocacy to reassert humanitarianism’s universalism and humanitarian relief being provided without political conditions.

International politics of the emergency Humanitarianism acquired new significance in post-Cold War international relations. Regrettably, however, humanitarianism’s profile has been due less to a flourishing humanism than how humanitarian advocacy compliments the contemporary politics of emergency.1 The end of Cold War ideological divisions without major international conflict suggested new possibilities for a peaceful global order and boosted idealist against realist accounts of international relations, especially in Europe, if not in the United States. Yet, its end also revealed profound problems in domestic and international politics. Strikingly, initial euphoria at the West’s triumph over communism quickly gave way to pessimism over the future. Premature triumphant declarations of ‘the end of history’ soon rang hollow and came to suggest abandonment of grand historical projects instead of their realisation. Indeed, security analysts were soon referring nostalgically to the Cold War period. Importantly the demise of Cold War ideological divisions eroded political meaning and the legitimacy of public institutions in the West too. Cold War rivalry for influence in the developing world had fostered rival political visions of national development. A modernist project was galvanised in the West under international pressure to produce an alternative to counter the Soviet Union model of progress. This exigency also helped give a sense of purpose to Western societies. Consequently, the loss of the Cold War political framework was experienced as disorientating rather than liberating. Progressive politics have fragmented in the West, and the emerging political discourse exhibits disenchantment with mass politics and universalist visions.

92 Vanessa Pupavac Western politicians have struggled to identify sources of meaning and common values around which to cohere their societies. In the elusive search for meaning, the relativist age has found the Holocaust or contemporary catastrophes to be almost the only remaining moral absolutes against which it can define itself. Western societies increasingly only seem to come together today in tragedy whether the sentimental mourning of Princess Diana in Britain or the public responses in Belgium against the paedophile killer Marc Dutroux. This problem is repeated at a local level where British city councils such as Nottingham have sought to reconnect to the public and recreate a civic ethos based on outrage against violent killings. This lowest common denominator definition of the good citizen as ‘not a violent killer’ reveals the exhaustion of progressive politics and how civic life is being reorganised around insecurity as opposed to a positive vision of the future. Political disorientation has intensified feelings of vulnerability and risk consciousness, which creates urgency that ‘something must be done’ but responses lack the coherence derived from a larger vision.2 The demise of grand historical projects has truncated political vision and encouraged short-term policy making. Politics resembles crisis management as politicians erratically lurch from one issue to another as they seek to project a sense of purpose through action, that is, the politics of emergency.3 So even before the World Trade Centre attack, Western politics was becoming subsumed into a security paradigm informed by heightened risk consciousness. Humanitarian emergencies have resonated in the Western imagination over the last decade because they are symptoms not only of the failure of past political projects but today’s politics that finds it difficult to do more than manage the present.4 A disenchanted polity has an opportunity to feel engaged and vicariously vent their existential anxieties in the elemental struggle for survival that the humanitarian emergency throws up. Moreover the politicising of the humanitarian emergency transforms it into a modern morality play for Western audiences. Victims and villains are identified and elusive moral certainties are found in the absolutes of life and death. Finding catharsis in other people’s emergency, the writer Dubravka Ugresic wryly observes, was the Bosnian conflict’s attraction for so many Europeans.5

Western sustainable development advocacy and national development’s demise The politics of emergency has serious consequences for the developing world. An important aspect of today’s truncated political vision is the

Problems for humanitarian advocacy 93 low horizons it offers for the developing world, which can only increase the chances of humanitarian emergencies occurring. Developing countries have long found themselves caught between the inadequacies of the market and international development policies. The Cold War promises of national development were not realised. From independence, developing countries found it difficult to secure capital investment to industrialise their economies except if they were considered vital to the West’s security interests. International development aid did not sufficiently compensate for the lack of capital investment and emphasised expert advice and training over capital investment.6 Moreover international development policy has always been conditioned by the international security climate. Western policy makers arguably only embraced a modernisation agenda for the developing world as part of its strategies to contain the influence of the Soviet Union. From the inception of international development, Western thinking was ambivalent towards the industrialisation of developing countries, fearing it could destabilise societies and promote political radicalism with broader consequences for international peace and security.7 Western scepticism became more pronounced as Third World nationalism receded and international pressure to counter the Soviet Union eased. Since the end of the Cold War the national development of developing countries to the level of industrialised countries is simply not even an aspiration, let alone a prospect. The retreat from national development in official Western policy has been complimented by non-governmental development thinking. Indeed the very expansion of the international NGO development sector embodied Western scepticism towards the industrialisation of the South and developing states. If earlier underdevelopment theories were critical of international development policies for reinforcing international inequalities, they nevertheless saw alternative modernisation models as essential for developing countries to enjoy more equal relations with the advanced industrial nations. Conversely contemporary development thinking is essentially anti-development, that is, it does not want to industrialise, but enhance individuals and communities’ existing means of survival. Its thinking is embodied in the much quoted maxim ‘Feed a man a fish and you feed him for a day. Teach a man to fish and you feed him for life.’ The maxim has been repeatedly invoked since the UN Campaign Against Hunger used it back in 1960. Technological progress carries negative connotations in NGO development circles, breaking the assumption of earlier development models, whether capitalist or socialist, which linked social progress with material and technical advancement. Low or intermediate technology is considered appropriate, the automation of production inappropriate.

94 Vanessa Pupavac The anti-development position of NGO thinking has long antecedents in Western romanticism’s hostility towards industrialisation expressed in the works of figures such as William Blake or William Morris. More specifically anti-developmentalism has been influenced by Western anthropological perspectives, which in turn informed colonial administration. Leading twentieth-century anthropologists were partly inspired by their doubts about their own societies, notably their concern with the alienating consequences of modernity, and a desire to find alternative ways of life which would support their progressive reform agenda at home by demonstrating the possibility of different ways of organising society. Anthropological thinking therefore considered it important to preserve the pluralism of cultures, because they thought traditional communities could provide insights for modern society. Their work often expressed alarm at how contact with modernity was destabilising the societies they studied. Hence anthropologists had serious reservations about international development policy seeking to transform the developing world on the lines of the advanced industrialised societies. Concerns over modernity’s destabilising impact on traditional societies were taken up by colonial administrators and shaped colonial thinking on development. The earlier anthropological critique of modernisation strategies was reinforced by the counterculture critique of mass society that influenced radical politics as it grappled with its failures. In trying to understand why the masses did not embrace radical politics critics such as Herbert Marcuse suggested that modern consumerism anaesthetised people and created conformists, inhibiting political radicalism.8 Political radicalism could only emerge from those outside the processes of the modern industrial state; therefore radicalism should be opposed to the idea of developing countries becoming modern industrial states like their own. Equally radicals were less and less enamoured by the communist model with the Soviet Union’s suppression of dissent in Eastern Europe. State sovereignty was associated not with national independence struggles but with violence, whether the two superpowers’ military interventions around the globe or their support for military regimes in the developing world. The counterculture critique idealised an authentic life of peasant farmers and independent artisans producing traditional crafts as still existing in parts of the developing world, but being crushed by development. This vision was also reinforced by the rise of environmentalism within Western thought expressed in books such as Rachel Carson’s influential Silent Spring, which condemned industrialisation as destroying the planet’s resources.9 Its holistic vision wanted

Problems for humanitarian advocacy 95 to minimise humanity’s imprint on the planet and return to a simpler way of life, which balanced human needs against the needs of the environment. Environmentalist perspectives were absorbed into the anti-modernisation critique as it became codified into the concept of sustainable development. Growing scepticism towards modernisation among Western policy makers was captured in E.F. Schumacher’s Small is Beautiful, which became the bible of the sustainable development model.10 Its publication during the 1970s oil crisis, which suggested to Western states how developing countries could challenge their access to cheap raw materials, secured Schumacher’s arguments a large hearing. Schumacher argued that modernisation policies were damaging communities and livelihoods, and promoting greed and frustration, and were therefore counter to international peace and security. Development strategies should reject industrialisation and universal prosperity as a goal and concentrate on fulfilling basic needs, maintaining traditional communities and livelihoods by disseminating low technological solutions. So while proponents of sustainable development readily condemn the past modernisation model as a Western imposition, they are reluctant to acknowledge how their anti-modernisation arguments are no less a Western import reflecting a long tradition of Western relativism, with strong antecedents in colonial development thinking. Conversely, while developing countries were often critical of the earlier international development programmes, this did not mean they were anti-development or favoured the new basic needs approach. Initiatives such as the 1974 UN Declaration on a New International Economic Order reveal that the developing states were demanding advanced technology to industrialise, along with fairer international terms of trade, as vital to become equals with developed states. Tellingly it was developing countries, notably the least developed countries, which championed the right to development in the 1980s against the growing antidevelopmentalism in Western development circles. Ironically, Western radical thinking therefore has come to share official scepticism towards industrialisation, although coming from opposing positions. Consider how small-scale non-wage production is championed as less exploitative than large-scale production and spreading ownership of the means of production.11 Previously the problem of ownership in large-scale production was seen as addressable through policies such as nationalisation or other forms of social ownership. Such solutions, however, no longer enjoy much support in development thinking. This change is not solely because of political, social and environmental questioning of industrialisation.

96 Vanessa Pupavac The coinciding shift from Keynesian to neo-liberal economics in Western economic policy in the 1980s championed the small state and opposed state intervention and state aid as creating dependency. The anti-state solutions such as micro-credit schemes offered by the retrenched sustainable development agenda have effectively complimented rather than challenged the anti-state agenda propounded by official donors. The sustainable development model makes a virtue of people having to create their own employment opportunities to support themselves in the face of structural adjustment reforms cutting state welfare and public employment. NGOs talk in terms of promoting ‘sustainable livelihoods’, ‘poor in markets’ and how ‘Corruption and the abuse of power prevent the benefits of free trade, privatisation and political change reaching the poorest.’12 The theme of empowering people with the skills and confidence to start up their own microenterprises chimes with the ideology of neo-liberal economics. As Mark Duffield observes, ‘Sustainable development shifts the responsibility for self-reproduction from states to people reconfigured as social entrepreneurs operating at the level of the household and communities.’13 In this vein, Christian Aid’s home page, for example, declares how it ‘believes in strengthening people to find their own solutions to the problems they face’,14 while Oxfam speaks of people coming together across the world ‘To end poverty for themselves, for others, for each other.’15 At its best, prioritising basic needs such as UNICEF’s GOBI (Growth, Oral Rehydration, Breastfeeding, Immunization) programmes have had significant success in improving infant survival rates despite the worsening economic situation in many developing countries. Yet, however impressive these programmes are as lifelines for populations in precarious circumstances, it would be a misnomer to describe them as development or poverty eradication. Overall the sustainable development model leaves most of the world’s population in poverty relying on household production, their lives dominated by the forces of nature and very exposed without the safety nets that citizens of post-industrial states expect. Nevertheless, proponents of sustainable development have not wanted to abandon efforts to promote social improvement, even as their basic needs approach seek to lower people’s material expectations. In effect, they expect pre-industrial societies to adopt post-industrial norms on gender mainstreaming, social inclusion, etc., while being based on enhanced traditional household production and eschewing the material comforts enjoyed by post-industrial societies. However, the demise of the national development drive is not returning countries to simple

Problems for humanitarian advocacy 97 holistic life in harmony with nature, but is brutal and competitive. Crucially, the sustainable development model does not address the limited capacity of the developing state, which can hardly be transformed into a progressive redistributive state guaranteeing its citizens’ welfare without a developed economy and infrastructure. In so far as the problem of the weak state is belatedly being recognised by official donors or NGOs, the problem of the weak state is moralised in terms of corruption or bad governance. The material conditions underlying the weak illiberal state are sidestepped. Reluctance to address contradictions in the sustainable development model relates to antipathy towards the modern industrial state, associating it with violence and injustice, and expectations of populations’ self-reliance, material restraint and lower expectations. Somehow a benign, understanding, liberal and decentralised state is presumed possible when people are competing for survival. However, the reality of a society organised around small-scale family producers, pastoralists and strong communal or kinship ties is likely only to be able to support a precarious state with a weak relationship to the population and characterised by a nepotistic public sphere. What does advocacy for free public education and health care mean in the absence of national development? Even if this advocacy were to succeed, leaving aside welfare distribution problems without a developed infrastructure, such advocacy can only realise basic health care and basic education. At the same time, the sustainable development model makes inequality between developing and developed countries an indefinite condition. Namely, abandoning the technological advancement of developing countries essentially means abandoning the advancement of equality between developing and developed states. These problems have not registered properly with international development advocates despite the disquiet expressed by developing countries towards the lowering of their prospects implied by the basic needs approach. Western anti-poverty campaigns should be seen in this light: a development model that does not aspire to universal prosperity, but has redefined poverty eradication in terms of managing survival through better self-reliance informs campaigns such as Making Poverty History. Consider NGO debt-relief advocacy which has been accompanied by proposals for robust conditionality and increased international supervision of indebted countries to root out corruption and ensure that government spending is organised around basic needs, rather than on defence, advanced technology and so on. So basic community health care spending is approved, but spending on high-tech

98 Vanessa Pupavac hospitals is suspect as an inefficient use of resources. NGO advocacy envisages people in developing countries not adopting debased Western lifestyles, but retaining their more authentic simple ways of life, or to put it more bluntly, they are envisaged as having a lower standard of living. Similarly too much fair-trade advocacy assumes people in developing countries engaged in appropriately low or medium technology in micro-enterprises as opposed to large-scale automated production. Implicitly, in so far as developing countries are envisaged as trading in international markets it is based on unequal means of production, presumably through a rather paternalistic relationship with ethnical Western multinational companies like the Body Shop or NGO shops. Moreover proposed fair-trade conditions, like micro-credit conditionality, also presume the right to dictate extra-financial terms based on the sustainable development vision of the ethical life. The sustainable development doctrine originally evaded the political consequences of making inequality an indefinite feature of the international system, but advocates of the 1990s human security model are plainly abandoning the principle of sovereign equality. Ironically the anti-development critique, despite its avowed antipathy towards modern industrial states, now endorses in the human security model those very states having greater powers against developing countries.

Human security advocacy, abandoning international equality If the sustainable development model complimented the anti-state neoliberal economic policies, the human security model, which evolved in the 1990s, assumed the failing capacity of developing states to protect their populations and the necessity of reordering international relations to deal with this reality. The UN Charter 1945 established a collective self-policing international system underpinned by the principles of national sovereignty and sovereign equality between states. Each state is presumed to represent the interests of its own people and have the capacity to guarantee its own security. Interference in the internal affairs of states is outlawed in the Charter. Thus the viability of the international security system has been dependent on developing newly independent states. Newly independent states looked forward to securing their capacity in the early heady days of international development, but incapacity has become an indefinite condition for many states in international development’s demise weakening the possibility of their being equal subjects internationally or moral agents

Problems for humanitarian advocacy 99 domestically securing their population’s welfare. Furthermore the collective self-policing security model is made untenable. The concept of human development as distinct from national development has captured the imagination of the demoralised international development community, while the associated concept of human security relates to enforcement and harnessing the higher priority (and resources) given to security by Western policy makers.16 Against the presumptions of the Charter, the concept of human security highlights that states may fail to secure the interests of their population and that states too often violate individuals’ security. Canada and Japan as donor countries have been prominently involved in elaborating the concept; Canada primarily in relation to humanitarian intervention and Japan primarily in relation to its development aspects. The UNDP within the UN system has been most closely associated with promoting the concepts, notably in conjunction with its human development index of basic needs and rights, which ranks countries in accordance with their compliance. Despite wide appeal in development circles, the concepts have been criticised as rhetorically attractive but of limited practicability for populations.17 This is unsurprising given development’s anti-materialist turn and its expectations of self-reliance. Predictably human development rankings categorise many developing countries as widely failing their populations while categorising the advanced industrial countries as generally securing their populations’ welfare. Yet the human development index was inspired by the desire to demonstrate that social progress is possible without material advancement. A broad correlation between per capita income and ranking is consciously contested in the human development literature, and cases countering this linkage emphasised, although the commonly cited examples of China and Cuba might suggest rather different conclusions being drawn from the sustainable development model championed by the human development literature! Developing countries find themselves caught between the contradictions of an anti-materialist development outlook and idealist accounts of international relations. Importantly for low-ranking developing countries, there has been a tendency to interpret states’ rankings as moral rankings rather than material rankings. Accordingly human security scales are being used to distinguish unethical states, which violate their population’s security, and responsible states, which provide human security. Human security enforcement strategies entrust the international community of responsible states to intervene in violating states on the behalf of vulnerable populations. Thus the human security model essentially challenges developing countries’

100 Vanessa Pupavac legitimacy and enhances the legitimacy of Western powers to intervene around the world, undermining the principle of sovereign equality between states. Intervention is positively endorsed in the human security model contrary to the UN Charter. The Charter’s prohibition was based on fears of its potential abuse by powerful states. Tellingly discussions over the human security model have neglected the potential conflict of interest between intervening states and the populations of developing states or indeed between Western NGOs and the populations of developing countries. This neglect is striking given how the concept of human security pointedly draws attention to the conflict of interests between a state and its population. NGOs talk of their international relations in terms of belonging to an intimate global community as if we are living in one big inclusive extended village, where people enjoy an equal voice and mutual ties of accountability, where wealth does not matter and individuals in the South can just pop along to their neighbours in the North. In this vein, Oxfam talks of its ‘interconnectedness’: Oxfam is a world wide network. A community that’s crossing continents. Linking villages, towns, countries. Connecting individuals who live thousands of miles apart. And from Bangalore to Bolton, from Tokyo to Tajikistan, this community is changing lives. People across the world are coming together with a shared goal.18 A direct disinterested relationship is being assumed by NGOs bypassing the developing state where NGOs place themselves as voicing the interests of people in developing countries rather than their delegitimised governments. The unequal distribution of power in this relationship is unacknowledged. In the unequal relationship, NGOs are political gatekeepers, determining which voices in the developing world they will represent, how their problems are represented and addressed, along with their proposed role as economic gatekeepers in fair trade or debt-relief conditionality. The possibility that NGOs might be drawn to certain voices that echo their thinking is overlooked. Meanwhile official policy making is taking for granted the acceptability of intervention to aid organisations, including military enforcement, and talking mechanisms for more efficient coordination between Western governments and NGOs in global governance. That intervening states and humanitarian organisations may have

Problems for humanitarian advocacy 101 conflicting objectives is overlooked. Such is the acceptability that Western governments have frequently found themselves criticised by aid organisations for not intervening enough in crises around the world, even following the controversial military invasion and occupation of Iraq. Indeed humanitarian war was a concept that humanitarian organisations helped legitimise in their demands for military enforcement in the Balkans during the 1990s. The collapse of humanitarian space in Iraq caused serious disquiet because humanitarians were identified with the Western military forces as legitimate targets, but has not prevented various humanitarian and human rights organisations demanding more robust intervention elsewhere since then including interventions bypassing the UN Security Council. Thus in November 2004, an Oxfam press release declared that, ‘The European Union must step in to the void left by the UN Security Council’s failure, and take action to stop the violence in Darfur.’19 Western governments can happily live with criticism that endorses their having a greater role. The moralisation of human insecurity in developing countries has provided something against which Western states can define themselves, while the endorsement of humanitarian enforcement has given them a flexible foreign policy tool. Politicians over the last decade have frequently observed they cannot intervene everywhere, but the idea that they should be intervening has boosted their weakened sense of purpose and helped them manage their crisis of legitimacy at home. They have at least been able to take a moral stand and point to violations of peoples’ security in the developing world, even if they have found it difficult to identify common values at home. The problem of human security in developing countries is real. However the demand to erode international equality between states and expand Western governance of other countries is an alarming anti-democratic conclusion to draw which reverses the political progress made in the international system during the twentieth century and resurrects the idea of liberal imperialism. Indicatively, the human security model only proposes third class social justice for populations in developing countries. Bosnia can be considered as perhaps the best, most comprehensive case of governance beyond borders, yet after a decade of international administration, there is over 40 per cent unemployment and the public welfare system is being reduced, not expanded. The population is expected increasingly to create its own employment through micro-enterprise and provide its own welfare through private insurance. Interestingly, post-conflict economy recovery in Bosnia under international administration has

102 Vanessa Pupavac been much weaker today than after the Second World War. Meanwhile international administrators seem much happier elaborating social policies which are susceptible to moralising or bureaucratic target setting such as quotas as opposed to policies capable of generating real changes in the political, social and economic prospects of the population. Within humanitarian work, there is an evident growing preference for international moral advocacy over material aid provision. Consider how the two UN ad hoc tribunals for former Yugoslavia and Rwanda (the former much more than the latter) swallowed up 20 per cent of the UN’s funds at the height of their funding, whose main beneficiaries have been human rights advocates and other professionals (including the author) rather than the victims themselves. This pattern is being repeated at different levels. This was encapsulated recently at a meeting on the Darfur crisis. The UN Humanitarian Coordinator Mukesh Kapila was highly animated in his address about how the international community should be prosecuting war crimes, leaving less time to devote to the pressing humanitarian aid needs of refugees. The conscious or unconscious priorities made in his address may seem a trivial matter to draw attention to but they illustrate how humanitarian advocacy is becoming skewed. The consequences of this skewed advocacy can be seen in the perversity of the UN warning that food rations may have to be cut in the refugee camps to levels below caloric requirements in the same month it announces the International Criminal Court is taking up the Darfur case. The discrepancy in resources suggests the international community is keener to take a moral stand on Darfur than properly feed the very refugees whose suffering it is invoking. The degree of international commitment and sustained efforts to provide and create a viable state in Bosnia is probably exceptional rather than the rule. More striking is the rather arbitrary, superficial and short-termist character of foreign interventions, which do not seem to be based on a rational analysis of security risks or evident plans of what to do once intervention has been initiated. The interventions create much sound and fury (shock and awe), but to what end is vague. In the words of Zaki Laidi, there is a desire to project moral and military authority in the absence of a clear political project.20 Consequently today’s interventions are not evolving into the same formal or embedded relationships between rulers and ruled of liberal imperialism past. Phrases such as ‘empire-lite’21 or the more damning ‘hyper-active attention deficit disorder’22 are being applied. The informal interventions of NGOs are proving to be a useful compliant mechanism in today’s ad hoc global engagements.

Problems for humanitarian advocacy 103

Humanitarian advocacy’s direction The relegitimising of international inequality between states and the informal political role being delegated to NGOs in governance beyond borders creates serious problems for humanitarian advocacy. It is too easy for aid agencies to become cheerleaders for Western posturing over the state of the developing world. Despite the extensive soul-searching in the 1990s, the humanitarian sector as a whole still underestimates the ramifications of this reordering for humanitarian work. Interestingly one of the strongest recent warnings on the dangers of humanitarianism becoming dangerously entangled with Western foreign military missions comes from the research director of the MSF-Foundation, when MSF pioneered today’s politicised humanitarian advocacy.23 Fabrice Weissman’s report pointedly observes humanitarians’ endorsement of the concept of humanitarian war has compromised humanitarianism’s meaning. He argues that humanitarian organisations must therefore bear some responsibility for becoming targets and being unable to work in places like Iraq or Afghanistan. In the light of NGOs demanding intervention in Darfur, Weissman asks, After the Iraqi and Afghan populations, will the Sudanese people on the wrong side of the front line become the newest victims, abandoned by humanitarian organizations forced to evacuate the country after their symbol has been militarized.24 If MSF has found itself burnt by being too closely associated with Western foreign adventures, other humanitarian or human rights organisations are less wary. Least wary of all in advocating military interventions in the name of humanitarianism are probably newer human rights organisations such as the Aegis Trust who, not being engaged in relief work, do not have to face the consequences of their stance on the ground. If they worry about too close an identification of contemporary military humanitarianism with past imperialism, they try to square this with the idea of ground troops coming from non-Western countries. But such niceties simply echo past colonial strategies of ‘getting savages to fight barbarians’.25 Generally, insofar as a consciousness of a changed climate is expressed, the changed climate is too easily put down to the War on Terror as if humanitarian advocacy could continue as usual if only Western governments did not lead their security priorities to divert aid from humanitarian concerns. The humanitarian organisations have been slow to acknowledge properly how their own political advocacy

104 Vanessa Pupavac has facilitated this reordering and undermining of the UN Charter, despite the compelling research produced by individual NGO staff on the political, social and ethical problems thrown up by humanitarian enforcement. Inconsistently NGOs have criticised the failure to get a prior UN Security Council resolution authorising military intervention in Iraq, although they have previously and subsequently testified to their willingness to dispense this requirement of international law in demanding military intervention in Kosovo or Darfur in the name of humanitarianism. Evidently the practical consequences for individual humanitarian missions such as the collapse of humanitarian space in Iraq have registered more than the broad ethical dilemmas raised by the concept of humanitarian enforcement. Furthermore the huge response to the Asian Tsunami has reinforced complacency that humanitarianism will be all right after all and dampened the impact of some insightful reflections on humanitarianism’s future. There is a final more general observation to make on the growth of humanitarian advocacy, which requires more reflection. Tony Vaux provocatively entitled his book The Selfish Altruist.26 Perhaps today we should speak of the narcissistic altruist. Namely that today’s preference for advocacy is not unrelated to today’s narcissistic cult of publicity. There exists a long-standing idea in philosophy that for charitable acts to be truly virtuous and not acts of vanity they should be secret. This ancient stricture may be harsh and impracticable (how would an organisation raise funds for its aid programmes?), but I highlight them because today’s desire to be seen to be doing something in high-profile emergencies such as the Asian Tsunami is skewing aid priorities and undermining the principle of universalism. The temptations of advocacy over ordinary aid relief are evident. Advocacy directly elevates an organisation’s profile in a manner that ordinary aid provision does not. In advocacy one can claim the moral high ground without the hassles and responsibilities of implementing policy. Nor does one have to deal with any contradictions of policies in practice. What humanitarian work or advocacy is appropriate for the twenty-first century to address injustices in humanitarian crises and make humanitarian crises less likely? This chapter has criticised the focus of much existing humanitarian advocacy as tending to reinforce international inequalities instead of overturning them. Insecurity is an inevitable condition for most people in developing countries because their weak states without a developed economy and infrastructure will lack the capacity to guarantee their welfare and rights, whatever their political hue and whatever the level of international supervision.

Problems for humanitarian advocacy 105 Ultimately humanitarianism is concerned with affirming a universal humanity and recognising the humanity of every individual. International inequalities make humanitarian relief necessary, but difficult to get right. Premature declarations of belonging to a global community cloud the reality of unequal relations, while moralising the conditions in the developing world is reinforcing international inequalities with dubious results for those in whose name the advocacy is conducted. In striving to affirm a universal humanity today, humanitarian advocacy should prioritise reasserting the importance of humanitarian relief without conditionality and how to regain humanitarian access on the basis of consent.

Notes 1 Laidi, Z., A World Without Meaning: The Crisis of Meaning in International Politics, London: Routledge, 1998; Furedi, F., Culture of Fear: Risk Taking and the Morality of Low Expectation, London: Continuum, 2002. 2 Furedi, Culture of Fear. 3 Laidi, A World Without Meaning. 4 Ibid. 5 Ugresic, D., The Culture of Lies, London: Phoenix House, 1998. 6 Galbraith, J.K., Economic Development, Cambridge, MA: Harvard University Press, 1964. 7 Pupavac, V., ‘Human Security and the Rise of Global Therapeutic Governance’, Conflict, Security and Development, vol. 5, no. 2, 2005, pp. 161–81. 8 Marcuse, H., One Dimensional Man: Studies in the Ideology of Advanced Industrial Society, London: Routledge & Kegan Paul, 1964. 9 Carson, R., Silent Spring, Cambridge, MA: Riverside Press, 1962. 10 Schumacher, E.F., Small is Beautiful: A Study of Economics as if People Mattered, London: Blond & Briggs, 1973. 11 Sen, A., Employment, Technology and Development, Oxford: Clarendon, 1975. 12 Oxfam GB Strategic Plan 2003/2004, 2005/2006, accessible at http://www. oxfam.org.uk 13 Duffield, M., ‘Getting Savages to Fight Barbarians: Development, Security and the Colonial Present’, Conflict, Security and Development, vol. 5, no. 2, 2005, pp. 141–59. 14 http://www.christian-aid.org.uk/aboutca/index.htm 15 http://www.oxfam.org.uk/about_us/annual_review/index.htm 16 King, G. and Murray C., ‘Rethinking Human Security’, Political Science Quarterly, vol. 116, no. 4, 2001–2, pp. 585–610; Mack, A. 2004. ‘The Concept of Human Security’, in M. Brzoska and P.J. Croll (eds), Promoting Security: But How and For Whom? Bonn: Bonn Centre for Conversion (BICC), pp. 47–50. 17 Ibid.

106 Vanessa Pupavac 18 Oxfam, Annual Review 2003/2004, Oxford: Oxfam, accessible at http://www.oxfam.org.uk 19 Oxfam, Press Release, 22 November 2004, accessible at http://www.oxfam. org.uk/press/releases/sudan221104.htm 20 Laidi, A World Without Meaning. 21 Ignatieff, M., Empire-Lite: Nation-Building in Bosnia, Kosovo, and Afghanistan, London: Vintage, 2003. 22 Ferguson, N., Colossus: The Price of America’s Empire, London: Allen Lane, 2004. 23 Weissman, F., Military Humanitarianism: A Deadly Confusion, 2005, accessible at http://www.msf.org/msfinternational/invoke.cfm?component= article&objectid=762E8B7B-2F5F-448A-8EC26F2039794E54&method= full_html 24 Ibid. 25 Duffield, ‘Getting Savages to Fight Barbarians’. 26 Vaux, T., The Selfish Altruist, London: Earthscan, 2001.

6

Who guards the guardians? International accountability in Bosnia Richard Caplan

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. (James Madison, Federalist Paper No.51)1

Introduction Long before and ever since James Madison penned these immortal words, political thinkers have been concerned with the question of how to control the power of governments. This concern has led to the development of various institutions and practices of accountability that restrain democratic governments and subject them to public oversight. Indeed, public accountability can be said to be one of the hallmarks of the democratic state. In Bosnia-Herzegovina (BiH), the High Representative (HR) and other international bodies wield governmental power – power that is exercised ostensibly for the purpose of democratic state-building. Yet, while the power that they possess can be quite considerable, international authorities are not directly accountable to the population whose territory they administer. They are, instead, accountable to the bodies that appoint them, such as the Peace Implementation Council (PIC) and the Council of the European Union in the case of the double-hatted HR,2 the North Atlantic Treaty Organization (NATO) in the case of the Stabilization Force (SFOR),3 and the European Court of Human Rights in the case of the international judges on the Bosnian Constitutional Court. International authorities serve at the pleasure of these and other bodies and it is to these bodies that they are largely answerable.

108 Richard Caplan There is, then, a fundamental contradiction that lies at the heart of the international administration of BiH – and all international territorial administrations for that matter. While international authorities seek, among other objectives, to enshrine democratic accountability in the local public institutions within their purview, these same authorities are in many ways unaccountable themselves. International administrators are not elected by the citizens of BiH and cannot be removed by them. Nor can the local population contest the decisions of these administrators whose actions, moreover, are not always transparent. Of course, the international administration of BiH operates within a complex international environment in which democratic norms, regional and global institutions, the media, non-governmental organizations (NGOs), and other factors arguably exert a constraining influence on its behaviour. Are these factors adequate, however, to ensure that there is no misuse of international authority? Do they compensate for the lack of international accountability at the local level? The following sections consider the concepts of vertical and horizontal accountability; how these concepts relate to the operation of the international administration; the limited accountability provided to the citizens of BiH, even in comparison to both historical and contemporary examples of international administrations; and in conclusion, ways of enhancing accountability.

The concept of accountability Accountability refers to the various norms, practices and institutions whose purpose is to hold public officials (and other bodies) responsible for their actions and for the outcomes of those actions. It is concerned, in particular, to prevent and redress abuses of power.4 Scholars sometimes distinguish between ‘vertical’ accountability and ‘horizontal’ accountability. Vertical accountability pertains to the relationship between entities of unequal ‘rank’, such as a government to its citizens or employers to their employees. Horizontal accountability concerns the relationship among entities of equal ‘rank’, such as the independent pillars of a government or society (e.g. the courts or the media vis-à-vis the executive).5 Both types of accountability exist in relation to international administrations but only at the international level, where transitional administrations and their constituent elements may be subject to internal audits (horizontal accountability) or to the scrutiny of the secretariat or member states of international organizations (vertical accountability). The ‘stakeholders’ – those most affected by the actions of an international administration – are largely excluded from these processes.6

Who guards the guardians? 109 Accountability entails answerability – the obligation on the part of public officials to inform the public about what they are doing and to provide explanations for their behavior. Accountability thus requires transparency with respect to decision-making, although this needs to be balanced against legitimate requirements for confidentiality (for instance, with respect to intelligence sources relating to national security). Accountability often also requires effective mechanisms of enforcement. If sanctions for malfeasance are not enforced – if, for instance, corrupt political leaders can disregard election results or court decisions accountability may be devoid of any real meaning. The sanctions need not necessarily be severe and sometimes disclosure alone can be its own punishment, as when public officials feel compelled to resign over conflicts of interest or individuals testifying before a truth commission suffer shame as a consequence of their actions. Under some circumstances accountability does not entail sanctions at all, as when a central banker is called to appear before a parliamentary committee periodically to explain the reasoning behind interest rate adjustments and other policy actions.7 As this example suggests, accountability not only guards against abuses of power, it also provides citizens and other stakeholders with information with which they can then make informed judgements, whether or not they are empowered to act on those judgements. (Citizens do not ordinarily elect their central banker, for example.) One reason to limit the scope of public accountability is to ensure the independence of officials (judges, for instance) who might otherwise be susceptible to electoral or other pressures that would compromise the integrity of their work. Accountability to citizens is also sometimes more broadly restricted in situations of extreme emergency where the suspension of the exercise of certain rights may be thought to be necessary for a limited period of time to restore normality.8 In effect, this is the basis upon which accountability to stakeholders would appear to be limited in international territorial administrations, the ‘normality’ to be restored implicitly understood to be that of a stable peace and effective mechanisms of domestic democratic governance. Such reasoning is nowhere made explicit, yet the extraordinary power vested in the administering authority and the absence of significant mechanisms of international accountability would seem to reflect such a view. As Paddy Ashdown explained in a speech to the Venice Commission: ‘The High Representative, as final interpreter of the Civilian Aspects of the GFAP [Dayton accord], has been entrusted with the power to take extraordinary measures to surmount the extraordinary obstacles facing peace implementation.’9 Similarly, the UN Interim Administration Mission in Kosovo (UNMIK)

110 Richard Caplan defended its practice of extra-judicial detention in 2001 with reference to the ‘internationally-recognized emergency’.10 Alternatively, one could liken the administered territories to nonself-governing territories and the administering authorities to trustees who, while obliged to promote the well-being of the inhabitants and the progressive development of their political institutions, are not necessarily obliged to answer to them.11 However, this justification would be problematic in the case of BiH, because BiH – unlike other internationally administered territories – has its own sovereign authorities. Trusteeship and sovereignty are mutually exclusive concepts.12 Although the purpose of the Office of the High Representative (OHR) originally was to ‘facilitate the Parties’ own efforts’ to implement the Dayton peace agreement,13 the hand of the HR has been strengthened considerably as a consequence of a re-interpretation of these powers by the PIC. At its meeting in Bonn in December 1997, the PIC gave the HR greater authority, including the power to dismiss local officials deemed to be obstructing implementation of the Dayton accord and to issue interim laws if the local parties were ‘unable’ (that is, unwilling) to do so.14 Other international authorities, meanwhile – among them the Governor of the Central Bank (until 1 January 2005), the three international judges of the Constitutional Court, and individuals serving with SFOR and its EUFOR follow on – have from the start enjoyed significant autonomy in relation to the local parties by virtue of the provisions of the Dayton accord. These provisions, it bears noting, were agreed to by the local parties; however, ten years on, as the urgency of the situation in BiH has abated, there has been considerable debate, both within BiH and internationally, about the appropriate exercise of international authority – a debate that has highlighted the limits of international accountability.15 Nowadays, it is difficult to justify the HR’s extraordinary powers with reference to ‘emergency conditions’, although it is clear that certain state-building measures would still not be undertaken by the local parties were it not for the intervention of the HR.16

Mechanisms of accountability To say that the international administration of BiH is, in many respects, unaccountable is not to suggest that there are no mechanisms of accountability at work at all. To begin with, international authorities must comply with a variety of reporting obligations at the international level. The HR is required to report periodically to the United Nations,

Who guards the guardians? 111 the European Union, the United States, Russia, and ‘other interested governments, parties, and organizations’ on progress in implementation of the Dayton peace agreement,17 and to brief the PIC and its Steering Board regularly. The reports are available for all to read (in English only, however) on the web page of the OHR. Other international or regional organizations participating in the administration of BiH, such as the World Bank and the Organization for Security and Co-operation in Europe (OSCE), have similar reporting requirements. Of course, reporting on one’s own activities has obvious limitations as far as critical examination is concerned, even if these reports often contain candid assessments and, moreover, are subject to scrutiny by higher internal officials and outside authorities. In addition to these reports, interested organizations will often also request the HR to brief them directly, while representatives and delegates from the organizations may visit the territory to observe the work of the administration first hand. There are other mechanisms of international accountability. The World Bank maintains an Inspection Panel, whose services are in principle available wherever the Bank has projects, including in BiH. The panel is a three-member body established in 1993 to investigate complaints from local citizens who claim that they have been adversely affected, in a direct and material way, by a Bank-financed project.18 Yet, although the Bank has had a very extensive presence in BiH, to date the panel has received no requests for inspection from Bosnian citizens (or from citizens under any other international administrations for that matter).19 This may be because, despite the extent of the Bank’s activities in BiH, there is little awareness of the existence of the panel, as the Bank is not very active in promoting knowledge about its work among affected populations. Other important mechanisms of accountability are the various unofficial bodies, in particular the international and local media and NGOs. The international media have at times been influential in shaping perceptions within donor and other interested states that, in turn, have had a bearing on international policy in the administered territories. The spotlight on alleged corruption, for instance, has at times been especially bright.20 International coverage, however, has tended to be episodic and, with the passage of time, less and less frequent, although the local language radio services of the major international news broadcasters, such as the BBC, Deutsche Welle, and Radio France lnternationale, have provided regular and sometimes probing coverage of the international administration of BiH. Their coverage has been valuable both for informing the local citizenry and

112 Richard Caplan for helping to promote higher journalistic standards among the local media. The local media themselves have also on occasion been noteworthy for their coverage of the international administration, and there is some evidence to suggest that international policy-makers are sensitive to local media coverage and feel constrained to respond to criticism.21 But the quality and accuracy of this reporting has been very variable. Although international authorities have expended considerable amounts of funding in support of the local media, these same authorities have been slow to appreciate the importance of establishing an adequate regulatory framework to help develop more effective media. In particular, they have been slow either to promote or impose through executive decision the regulations necessary to facilitate the development of independent and responsible journalism – with, for instance, the promulgation of defamation legislation, the establishment of a transparent licensing regime, and the establishment of codes of practice, among other measures.22 International and local NGOs are also important mechanisms of horizontal accountability. Several international NGOs operate in BiH that are orientated specifically towards oversight of the administration – most notably, the International Crisis Group (ICG) and the European Stability Initiative (ESI), whose reports are often available in Bosnian–Croatian–Serbian.23 Many of the analysts working with these NGOs are well acquainted with the region, know the local languages, and, in some cases, have even served in the international administration. Their analysis has helped to shape the perceptions of key diplomatic ‘shareholders’ in theatre, such as the United States, Britain and other major donors. Other international NGOs have concentrated on specific areas of the international administration, such as human rights (Amnesty International, Human Rights Watch), refugees (US Committee for Refugees, Refugees International), and democratization (International Institute for Democracy and Electoral Assistance). There are no significant indigenous NGOs, however, that monitor and analyse the work of the territorial administration and associated agencies in BiH. The absence of effective local NGOs working in this area testifies the more general problem in BiH of a lack of citizen engagement in the practice of government.24 Lacking, too, in BiH is an international ombudsperson’s office. An institution that has its modern roots in nineteenth-century Sweden, an ombudsperson is an independent public official who receives complaints from aggrieved individuals against public bodies and government departments or their employees and who has the power

Who guards the guardians? 113 to investigate, recommend corrective action and issue reports.25 The scope of an ombudsperson’s remit can vary significantly, from ‘general purpose’ (dealing with complaints across a wide spectrum of governmental activities at all levels of government) to ‘single purpose’ (dealing with only one area or aspect of governmental activity). In other international territorial administrations, the ombudsperson has played a role in holding international officials accountable, although this role has generally been limited to the protection of the human rights and freedoms of individuals and legal entities within the territory.26 In East Timor, complaints could be filed against the UN Transitional Administration (UNTAET) as well as the agencies, programmes and institutions of the emerging state with respect to policies, procedures and decisions that were thought to be unfair, discriminatory or unjust, or in violation of human rights.27 In Kosovo, the ombudsperson can receive and investigate complaints from any person in Kosovo concerning human rights violations and actions constituting an abuse of authority by UNMIK as well as by any central or local institution,28 although the ombudsperson’s jurisdiction does not extend to the NATO-led Kosovo Force (KFOR). Even this limited redress is not available in BiH. There are three ombudsperson institutions in BiH – one at the state level (including the District of Brcko) and one for each of the two entities – but their jurisdictions do not extend to international actions except insofar as international bodies may be called upon to facilitate redress of domestic violations.29

The accountability deficit The accountability mechanisms that exist in BiH, then, are fairly limited, especially at the local level. As a result, they can only mitigate the international accountability deficit. This deficit manifests itself in several ways, notably a lack of transparency, the absence of local checks on the use of international power, immunities that international personnel enjoy, and the absence of elections or other popular ‘referenda’ on international performance. The deficit is tolerated to a greater degree both domestically and internationally than would normally be the case within most established democracies because of the extraordinary circumstances that led to the establishment of the Dayton structures. And, yet, in June 2004, the Council of Europe’s Parliamentary Assembly observed that: The scope of the OHR is such that, to all intents and purposes, it constitutes the supreme institution vested with power in Bosnia

114 Richard Caplan and Herzegovina. In this connection, the Assembly considers it irreconcilable with democratic principles that the OHR should be able to take enforceable decisions without being accountable for them or obliged to justify their validity and without there being a legal remedy.30 From the standpoint of the affected population, the process of international decision-making in BiH can sometimes seem opaque, notwithstanding laudable efforts by the international authorities to communicate via the publication of various newsletters, reports and press releases, television programmes and the convening of public meetings. Sometimes the simple fact that relevant documents are not always available in local languages creates a barrier to comprehension. There have also been considerable delays in publishing regulations and the tacit assumption that publication on the Internet is sufficient even though a large proportion of the population lacks access to computer services. As late as December 2004, the Bosnian Constitution – Annex 4 of the Dayton accord – had still not been published in the Official Gazette of BiH.31 Transparency is often also lacking with respect to international decision-making. Key decisions are frequently taken without sufficient explanation offered into the reasoning behind them. This practice, too, contributes to the impression of arbitrary rule. As the International Crisis Group has observed: Respect for Bosnian authorities and basic notions of reciprocity argue for at least the degree of transparency necessary for the Bosnian authorities and people to understand the basis for decisions, and the decision-making processes, that so affect them. If the point of the international encampment in Bosnia is to ‘teach’ democracy, tolerance and good governance to the Bosnians then there is no better way to start than by example.32 This admonition was made in 1996 but in important respects it is as apt today as it was then. The immunities that international personnel enjoy, however necessary, further exacerbate the accountability deficit. The NATO-led international security forces (IFOR and then SFOR) have benefited from the same protections as those extended to ‘experts on missions’ by the Convention on the Privileges and Immunities of the United Nations. The Convention accords the relevant personnel ‘immunity from legal process of every kind’ in relation to ‘acts done by them in the course of the performance of their mission’.33 International

Who guards the guardians? 115 personnel serving with IFOR/SFOR have been subject, therefore, to the exclusive jurisdiction of the respective sending state with regard to any criminal or disciplinary offence that they might commit in BiH.34 Some of the personnel serving with the security forces in BiH have been implicated in human rights violations: Amnesty International has documented illegal and arbitrary arrests by peacekeeping troops, their ill-treatment of detainees, and the failure of the forces to respect local court decisions regarding detainees.35 In no case known to Amnesty International, however, has a peacekeeper been brought before a national judiciary in an instance where an alleged human rights violation has occurred. International civil personnel also enjoy broad protection from prosecution. The HR and his staff, for instance, benefit from the same privileges and immunities as are accorded diplomatic agents under the Vienna Convention on Diplomatic Relations.36 This is not to say that international personnel operate in a legal vacuum: they are bound by the provisions of international human rights and humanitarian law. International personnel, however, are subject only to the jurisdiction of the international organizations with which they serve or, if on secondment, of their respective sending states. In neighboring Kosovo, by comparison, the situation is marginally better: there the ombudsperson has jurisdiction to investigate a range of complaints against UNMIK although these are very limited and the ombudsperson can only forward complaints against KFOR to KFOR for its consideration. Partly in recognition of the need to be more accountable, UNMIK established ‘claims offices’ to consider claims for compensation as a result of injuries or damages caused by the organization. However, UNMIK provides no opportunity for individuals to be represented by legal counsel before these offices, and all decisions are taken by a panel of UNMIK staff members, against which the only possible appeal is a memorandum to the UNMIK Director of Administration.37 (KFOR has established similar offices but its appeals process, according to the ombudsperson, ‘incorporates many elements of proper judicial proceedings’.) The deficiencies of these practices notwithstanding, they represent an improvement over the situation in BiH. The lack of transparency and the absence of appeal mechanisms combine in respect of the dismissal of local authorities. HR’s have it in their power to dismiss local authorities in almost every position (mayors, judges, legislators, bank officials, and even presidents) who are deemed by them to be obstructing implementation of the Dayton peace agreement. They are able to carry out these dismissals without

116 Richard Caplan offering any evidence in support of their actions and there is no scope for appeal on the part of the individuals affected. Alija Izetbegovic, then a member of the Bosnian presidency, observed in late 1999: ‘In Sarajevo, they remove a man, label him dishonest, do not present any proof of this, and then talk to us about human rights . . . They want us to take their word for it.’38 Such practices can hardly be said to be an object lesson in democratic governance.

Enhancing accountability International territorial administrations are not representative democracies; they are institutions created and sustained by international processes – processes, which, though themselves democratically deficient in certain respects, establish a legitimate basis and parameters for the exercise of international authority. International transitional authorities should not be expected, therefore, to function as governments answerable primarily to the people whose territories they administer. Nevertheless, greater effort can and should be made to ensure a greater degree of accountability to the local population. There are several measures that can be taken to strengthen international accountability. One is to enlarge the institution of the ombudsperson. The Ombudsman of Bosnia and Herzegovina, now concerned exclusively with human rights violations, could conceivably be empowered to receive and investigate complaints from citizens about the process of international administration for instance, procedural improprieties, bias or the lack of due process – and make recommendations to the transitional authority on the basis of their findings. The ombudsman would not be able to strike down the HR’s and other internationals’ decisions but the recommendations might carry some weight. There is a precedent for such an enlargement of responsibilities: elsewhere ombudspersons deal with complaints across the whole spectrum of governmental activities.39 The more fundamental problem is that too often transitional administrators view the ombudsperson as an irritant rather than as a vital institution. A high-profile appointment might help to enhance the stature of the office, but the problem is not an easy one to resolve. A second mechanism for strengthening accountability is expanded jurisdiction of the Bosnian high courts. As these courts demonstrate that they are capable of deciding issues in a fair and impartial manner, they might be given authority to review international authorities’ exercise of powers if and when these seem to be incompatible with locally enacted legislation. The Bosnian Constitutional Court, for instance,

Who guards the guardians? 117 has jurisdiction over issues concerning whether a law is compatible with the constitution, international human-rights law, and general rules of public international law.40 In November 2000, for the first time, the court reviewed a decision of the HR (regarding the creation of a unified border service for BiH), which, though the legislation was found to be in conformity with the constitution, established a precedent for a local institution (or, more accurately, a mixed institution) to challenge the legality of an international act.41 Before local courts can assume more authority, however, it may be necessary to amend the international legislation defining the powers of the HR and other international administrators to allow for some form of judicial review. International officials might also find it instructive to revisit some of the parallel experiences of the past. Under the League of Nations administration of the Saar Basin, for instance, the League Council followed the work of the Governing Commission closely and intervened on at least one occasion – in reaction to a decree restricting civil liberties – to check the authority of the Commission.42 In addition, the League had a dedicated supervisory body, the Permanent Mandates Commission (PMC), whose principal role was oversight of mandatory administrations. Under the United Nations Trusteeship system, there was also a dedicated supervisory body – the Trusteeship Council – that had responsibility for the review of reports submitted by the administering authority of trust territories.43 The Trusteeship Council could also accept petitions from inhabitants of the trust territories and from third parties as well, marking an innovation over the functioning of the PMC.44 In theory, a similar function could be performed by an ad hoc body that would be established by the Security Council. (The Security Council already oversees the work of other international administrations, but the burdens on the Council mean that its oversight is cursory.) Indeed, the UN Secretary-General’s High-level Panel on Threats, Challenges and Change recommended the establishment of a Peacebuilding Commission, one of whose functions could be to oversee the work of UN territorial administrations in its December 2004 report.45 The Panel envisaged that national representatives of any country receiving peace-building support would be invited to attend the meetings of the commission; it might also consider accepting petitions from local residents, in the manner of the UN Trusteeship Council. The accountability deficit could also be reduced if there were a clear (though not rigid) sense of the limits of international executive

118 Richard Caplan authority. To a certain extent HR Paddy Ashdown began to delineate such limits with the articulation of his Mission Implementation Plan (MIP) in January 2003, which identified the core tasks which the OHR proposed to focus upon in order to accomplish its mission. The MIP acknowledged that it was neither possible nor desirable for the OHR to do everything: ‘Our job is to bring BiH to the point at which it can continue its journey, like other transition countries, with substantial support from the international community, but without the unique and highly intrusive, and potentially dependency-inducing post-war support structure that OHR represents.’46 More significantly, the MIP identified the transition point for each of its core tasks by which they could be judged to be either completed or in a position to be handed over to the Bosnian authorities. Here, then, was a potential gauge for assessing whether the OHR was working within or exceeding specified limits. The problem with this approach, however, was two-fold. First, it left it to the OHR to identify both the tasks and transition points and, more importantly, to make the determination as to whether these points have been reached. There is thus the danger that the goal posts can be moved indefinitely. Indeed, as the OHR itself has acknowledged, rather ambiguously, it may be necessary to add tasks or programmes ‘in the light of developments’.47 Second, there was no mechanism by which Bosnian citizens could challenge the HR’s assessments of progress towards transition, just as there are no mechanisms for the review of other decisions that he may make. The flipside of restraint in the exercise of international authority is local ownership of the processes of governance. HR Wolfgang Petritsch made ownership the cornerstone of his new strategic approach to the international administration of BiH in 1999: ‘The overriding objective of the International Community must now be to substantially accelerate the rate at which responsibility for governance and particularly the creation and effective operation of state institutions is assumed by local political leaders’, he told ministers of the PIC’s Steering Board on 22 September 1999.48 However, what Petritsch and other international officials clearly have had in mind when they have spoken about ownership is a greater sense of local responsibility for domestic governance. Missing from the equation is any sense of ownership of international processes. And yet, local ownership is arguably difficult to achieve without meaningful participation in international as well as domestic decision-making.49 As Joseph Stiglitz, the former chief

Who guards the guardians? 119 economist of the World Bank, has observed in relation to development assistance programmes: Broad participation in the vital activities of a developing society, like shop-floor participation in a company, is at least helpful, and perhaps even necessary to foster a lasting transformation. Active involvement brings commitment to the lessons being learned and ownership of the results. Participation and involvement is not just a matter for government officials or managers; it needs to reach deeper to include those who are often excluded and who are key to the strengthening of social and organizational capital. Outside experts can encourage ‘ownership’ of ‘best policies’ through persuasion, but the degree of ownership is likely to be much greater if those who must carry out the policies are actively involved in the process of shaping and adapting, if not reinventing these policies in the country itself.50 Active local involvement in the process of shaping international legislation with respect to BiH has certainly been limited. Formal consultative mechanisms – a feature of other international administrations – have been lacking from the start, if only because BiH, uniquely among international ‘protectorates’, has had a sovereign government and it would not have been appropriate for an international administration to establish formal consultative links with anyone other than government or government-sanctioned representatives. Indeed, in Kosovo and East Timor, the formal local consultative mechanisms were disbanded once the provisional institutions of self-government were established. For similar reasons, arguments in favor of the ‘Bosnianization’ of the OHR are somewhat misguided. While it might seem desirable to increase the degree of local responsibility for the execution of OHR tasks, a truly Bosnianized OHR would represent something of an unelected parallel Bosnian government, which would clearly be unacceptable. The fact that the OHR is not accountable to the Bosnian public is problematic enough; how much more fraught would be the relationship between a Bosnian head of the OHR’s Economic Department and the Federation’s elected Finance Minister? There are also legal impediments to local ownership of international processes. The HR and other international officials are accountable to an international constituency and have an international mandate to ensure the integrity of particular governmental operations. There is, in

120 Richard Caplan short, an inescapable contradiction between the requirements of international administration, on the one hand, and the imperative of local ownership, on the other, which can only be overcome with the eventual transfer of responsibility to Bosnian authorities and the concomitant relinquishment of international authority over those same areas. The Bosnianization of internationally controlled governmental functions has in fact occurred in a number of areas – some of them very sensitive – as local authorities have satisfied the international authorities that they have the capacity to execute their responsibilities in a competent and impartial manner. After six years of direct management of all electoral activity in BiH, for instance, the OSCE in 2001 transferred its responsibility for the administration of elections to a mixed Bosnian Election Commission (comprising four Bosnians and three internationals) that derives its authority from and reports to the Parliamentary Assembly of Bosnia and Herzegovina. Similarly, in December 2003, the OHR terminated the Reconstruction and Return Task Force and transferred its responsibilities to the relevant domestic authorities.51 And on 1 January 2004, three Bosnian citizens succeeded Frank Orton, a Swedish national, as the Human Rights Ombudsmen of Bosnia and Herzegovina.52 The Central Bank of Bosnia and Herzegovina, too, has undergone a steady Bosnianization: its staff of more than 250 is made up now almost entirely of Bosnian nationals. While the head of the bank has been a foreign national, as stipulated by the Dayton accord, a Bosnian will serve as governor from 1 January 2005.53 In all cases the domestic bodies are subject to continued international supervision but, in effect, international control has withered away.

Conclusion The fact that there is a fundamental contradiction at the heart of the international administration of BiH is not to say that the administration is fundamentally flawed. ‘All international administration, however benign, is to some extent illegitimate’, David Harland has observed. ‘In a world in which sovereignty is understood to flow from the will of the people, the very idea of an administration brought from the outside runs against that of sovereignty.’54 A lack of international accountability at the local level can be justified on the grounds that emergency situations require extraordinary measures that may extend to the temporary suspension of the norms of democratic governance. To accept that radical measures may be necessary under

Who guards the guardians? 121 such circumstances, however, does not mean that there is no scope for the enhancement of accountability. Indeed, as the situation in BiH improves and BiH’s problems begin to approximate those of other transition states, greater international accountability becomes not simply desirable but imperative. To the extent that greater international accountability can be achieved, it will help to ensure the legitimacy of international actions.

Notes 1 James Madison [attributed], ‘The Federalist No.51’, in Hamilton, A., Jay, J. and Madison, J., The Federalist: A Commentary on the Constitution of the United States, New York: Modern Library, 1941, p. 337. 2 With the appointment of Paddy Ashdown as HR, the HR also became the European Union Special Representative in Bosnia and Herzegovina. 3 On 2 December 2004, the EU-led EUFOR succeeded SFOR. 4 Schedler, A. ‘Conceptualizing Accountability’, in Schedler, A., Diamond, L. and Plattner, M.F. (eds), The Self-Restraining State: Power and Accountability in the New Democracies, Boulder, CO: Lynne Rienner, 1999, p. 14. 5 Ibid. pp. 22–5. See also O’Donnell, G. ‘Delegative Democracy’, Journal of Democracy, vol. 5, no. 1, (1994), pp. 55–69. 6 On the notion of ‘Stakeholder Accountability’, see Freeman, R.E., Strategic Management: A Stakeholder Approach, Boston, MA: Pitman, 1984. 7 Schedler, ‘Conceptualizing Accountability’, pp. 17–18. 8 International Covenant on Civil and Political Rights, Art. 4.1 reads: ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’, available at www.unhchr.chlhtml/menu3/b/a_ccpr.htm 9 Speech by the High Representative, Paddy Ashdown, to the Venice Commission, 8 October 2004, available at www.ohr.int/print/? content_ id⫽33344 10 ‘Regarding the Administration’s retention of the right to extend pre-trial detention through Executive Orders, i.e. outside the jurisdiction of the courts system, UNMIK reminds critics that Kosovo still ranks as an internationally-recognized emergency. For such circumstances, international human rights standards accept the need for special measures that, in the wider interests of security, and under prescribed legal conditions, allow authorities to respond to the findings of intelligence that are not able to be presented to the court system.’ UNMIK News, no. 98, 25 June 2001, available at www.unmikonline.org/pub/news/n198.html 11 Compare with Charter of the United Nations, Chapter XI (‘Declaration Regarding Non-Self-Governing Territories’) and Chapter XII (‘International Trusteeship System’), available at www.un.org/aboutun/charter/

122 Richard Caplan 12 See further, Bain, W. Between Anarchy and Society: Trusteeship and the Obligations of Power, Oxford: Oxford University Press, 2003. 13 General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. 1(2), 1995, emphasis added, available at www.ohr.int/dpa/ default.asp?content_id⫽380 14 Peace Implementation Council, ‘Bosnia and Herzegovina 1998: Selfsustaining Structures’, Bonn, 10 December 1997, Art. XI(2), available at www.ohr.int/pic/default.asp?content_id⫽5182 15 See, for instance, Knaus, G. and Martin, F. ‘Travails of the European Raj’, Journal of Democracy, vo1. 14, no. 3, 2003, pp. 60–74; International Crisis Group, Bosnia’s Nationalist Governments: Paddy Ashdown and the Paradoxes of State Building, ICG Balkans Report No.146, 22 July 2003, available at www.crisisweb.org/home/index.cfm?id⫽1474&1⫽1 16 For a discussion of the HR’s exercise of authority, see Caplan, R. ‘International Authority and State Building: The Case of Bosnia and Herzegovina’, Global Governance, vo1. 10, no. l, 2004, pp. 53–65. 17 General Framework Agreement (n.13), Annex 10, Art. II.l(f), 2004. The UN Security Council requires the Secretary-General to submit the HR’s reports to the Council. See UNSCR 1031, 15 December 1995, §32. 18 Details about the operations of the Inspection Panel, accessed at http://wbln0018.worldbank.org/IPNIIPNWeb.nsf?OpenDatabase. See also, Shihata, I.F.I. The World Bank Inspection Panel, Oxford: Oxford University Press, 1994. 19 Author email exchange with Mr Serge Selwan, World Bank Inspection Panel, 4 February 2004. 20 See, for instance, Hedges, C. ‘Leaders in Bosnia are said to steal up to $1 Billion’, New York Times, 17 August 1999. In this particular case the New York Times was reporting on findings by the OHR’s own anti-fraud unit, which the OHR did not wish to publicize. 21 Buric, A. ‘The Media War and Peace in Bosnia’, in Regional Media in Conflict: Case Studies in Local War Reporting, London: Institute for War and Peace Reporting, 2000, p. 71. 22 Ibid. 23 The reports of the two organizations can be accessed at www. crisisweb.org and www.esiweb.org respectively. 24 This problem is discussed in European Stability Initiative, Governance and Democracy in Bosnia and Herzegovina: Post-Industrial Society and the Authoritarian Temptation, 11 October 2004, available at www. esiweb.org/docs/showdocument.php?document_ID⫽63 25 Gregory, R. and Giddings, P. ‘The Ombudsman Institution: Growth and Development’, in Gregory, R. and Giddings, P. (eds), Righting Wrongs: The Ombudsman in Six Continents, Amsterdam: IOS Press, 2000, p. 3. 26 In the case of Kosovo, consideration had also been given to the inclusion of ‘maladministration’ within the remit of the ombudsperson but these provisions were omitted from the final regulation. See Koskinen, P. ‘Workshop Background Paper on Human Rights Institutions’, paper prepared for Kosovo International Human Rights Conference, 10–11 December 1999, in Conference Documents and Report, Annex F (Kosovo: OSCE Mission in Kosovo, 2000), p. 120. The so-called Crossman Catalogue defines ‘maladministration’ as including ‘bias, neglect, inattention, delay,

Who guards the guardians? 123

27 28 29

30 31 32 33 34 35

36 37 38 39 40 41 42 43

incompetence, ineptitude, perversity, turpitude, arbitrariness, and so on’. The ‘catalogue’, which was not intended to be a comprehensive definition, cites examples offered by Richard Crossman, then leader of the House of Commons, when the Parliamentary Commissioner Act of 1967 was being taken through Parliament. House of Commons Debates [Hansard] 734, 1966–7, 18 October 1966, cols.51–2. ‘Twenty Cases Examined by Ombudsperson’, UNTAET Daily Press Briefing, 1 June 2001, available at www.un.org/peace/etimor/DB/ UntaetDB2001.htm UNMIK Regulation No.2000/38, ‘On the Establishment of the Ombudsperson Institution in Kosovo’, 30 June 2000. General Framework Agreement (n.13), Annex 6, Art. IV, mandated the appointment of a Human Rights Ombudsman or a non-renewable fiveyear term, which the three signatory parties agreed to prolong until 31 December 2003, when responsibility was transferred to an all-Bosnian institution. The Ombudsmen of the Federation of Bosnia and Herzegovina was established under the Federation Constitution of 1994, while the Ombudsmen of Republika Srpska was established through legislation adopted in February 2000. Parliamentary Assembly of the Council of Europe, Res. 1384, 26 June 2004, Art. 13. Author email exchange with Dr Zoran Pajic, Office of the High Representative, 23 December 2004. International Crisis Group, Aid and Accountability: Dayton Implementation, ICG Bosnia Report No.17, 24 November 1996, p. 16, available at www.crisisweb.org/home/index.cfm?id⫽1566&1⫽1 Convention on the Privileges and Immunities of the United Nations, Art. VI, Section 22(b). The UN Secretary-General can, however, waive the immunity of any official. General Framework Agreement (n.13), Annex lA, Appendix B, Art. 7. Amnesty International, ‘The Apparent Lack of Accountability of International Peace-keeping Forces in Kosovo and Bosnia-Herzegovina’, AI Index: EUR 05/002/2004, 1 April 2004, available at http://web.amnesty. org/library/pdf/EUR050022004ENGLISH/$File/EUR05 00204. pdf General Framework Agreement (n.13), Annex 10, Art. III.4(b). Ombudsperson Institution in Kosovo, Third Annual Report 2002–2003, p. 4, available at www.ombudspersonkosovo.org Izetbegovic, cited in Knaus and Martin (n.15), p. 66. Gregory and Giddings (n.25), p. 8. Constitution of Bosnia and Herzegovina, Art. VI, available at www.ccbh.ba/?lang⫽en&page⫽texts/constitution/article06 Constitutional Court of Bosnia and Herzegovina, Decision U 9/00, 3 November 2000, available at www.ccbh.ba/?lang⫽en&page⫽decisions/ byyear/2000 Ratner, S.R. The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War, Basingstoke: Macmillan, 1995, pp. 92–3. For a discussion of the supervisory roles of the Permanent Mandates Commission and the Trusteeship Council, see Crawford, N.C. Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention, Cambridge: Cambridge University Press, 2002, chapters 6 and 7.

124 Richard Caplan 44 Charter of the United Nations (n.11), chapter XIII, Art. 87. 45 A More Secure World: Our Shared Responsibility, Report of the Highlevel Panel on Threats, Challenges and Change, UN Doe. A/59/565, 2 December 2004, §261–5, at www.un.org/secureworld/ 46 Office of the High Representative, ‘OHR Mission Implementation Plan’, 30 January 2003, available at www.ohr.int/ohr-info/ohr-mip/default.asp? content_id⫽29145 47 Ibid. 48 Wolfgang Petritsch, ‘Speech by the High Representative for Bosnia and Herzegovina at the Steering Board Ministerial Meeting’, New York, 22 September 1999, available at www.ohr.int/ohr-dept/presso/presssp/ default.asp?content_id⫽3339 49 See Baskin, M. ‘Between Exit and Engagement: On the Division of Authority in Transitional Administrations’, Global Governance, vol. 10, no. 1, 2004, pp. 119–37. 50 Stiglitz, J.E. ‘Participation and Development: Perspectives from the Comprehensive Development Paradigm’, Review of Development Economics, vol. 6, no. 2, 2002, p. 169 (emphasis added). 51 ‘25th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations’, 3 March 2004, §52, available at www.ohr.int/other-doc/hr-reports/default.asp? content_id⫽32024 52 Human Rights Ombudsman of Bosnia and Herzegovina, ‘Preliminary Monthly Report’, 31 December 2003, available at www.ohro.ba/ articles/cs.php?id⫽183. 53 The first ‘Bosnian’ Governor of the Central Bank, Peter Nicholl, was appointed in May 2003. Nicholl was already serving as the Governor of the Central Bank – and had been since the bank was established. In order to extend his position, beyond the six-year restriction on foreign nationals, the New Zealander was made a Bosnian citizen and his appointment extended a further 18 months. ‘Nicholl Extends His Stay’, Newsmakers, Central Banking, 26 May 2003, available at www.centralbanking. co.uk/newsmakers/archive/2003/may26.htm#2 54 Harland, D. ‘Legitimacy and Effectiveness in International Administration’, Global Governance, vol. 10. no. 1, p. 15.

7

UNMIK – facilitating Kosovo’s final status or its future status? Reconceptualising the problem, changing the solution Aidan Hehir

Introduction One of the most immediately apparent features of international relations in the post-Cold War era was the ‘explosion’ of intra-state conflicts, variously described as ethnic conflicts and civil wars. The ostensibly dramatic increase in intra-state instability precipitated much exploration into first, the catalysts for this new phenomenon and second, the most appropriate means by which these conflicts could be resolved. Debate regarding the second of these issues, the resolution of ethnic conflict, manifested most prominently in discussions regarding humanitarian intervention. Intra-state violence in Somalia, Bosnia, Rwanda and others suggested to some that outside intervention was required if these conflicts were to be resolved. Stopping the immediate violence has proved to be, though undeniably difficult, ultimately a matter of logistics and political will. Resolving the conflict, that is eliminating the underlying tensions that caused the violence, has proved to be an altogether more difficult though arguably no less important task. NATO’s (North Atlantic Treaty Organization’s) intervention in Kosovo in 1999 is an archetypal example of this dilemma. While Operation Allied Force was lauded by its supporters for having halted the immediate humanitarian crisis in the province, it did not solve the problem; the conflict was essentially frozen. The establishment of the United Nations Mission in Kosovo (UNMIK) was a clear acknowledgement of this and indicative of the growing belief that long-term international engagement was required to complement the suspension of hostilities. UNMIK was established with the aim of providing an interim administrative framework that would enable Kosovo to function while its final status was determined. UNMIK was designed as a temporary measure and while its immediate remit was to bring peace

126 Aidan Hehir and create a functioning economic and political system in the province, it was ultimately charged with facilitating its own obsolescence. The nature of Kosovo’s final status is a matter of great speculation and controversy but will undoubtedly have implications beyond Kosovo’s borders. Clearly there is no easy solution to this issue and while the problems inherited by UNMIK must be acknowledged, this article will suggest that the interim administration has done little to either clarify Kosovo’s future status or facilitate its own superannuation. The administration’s earlier core policy ‘Standards before Status’ is now acknowledged as having contributed little to the progression of the final status process. Yet, while this initiative has been officially superseded the policy which has come to replace, ‘Standards and Status’, does not necessarily advance the transition from international administration to self-rule. It will be argued that the emerging prescription for the province involves the maintenance of significant international involvement and a reconceptualisation of the goal the UN administration is seeking to achieve. Rather than constituting an interim administration extant during the transition from internal conflict to an agreed peaceful final status for Kosovo, the administration is increasingly advocating the creation of a status that will necessitate continued direct international involvement in Kosovo while the province’s future status is determined.

The establishment and role of UNMIK The situation in Kosovo following NATO’s intervention was one of pronounced internal chaos and widespread violence. The 78 days of NATO’s campaign witnessed huge population displacement and in the immediate aftermath of Operation Allied Force a round of ‘reverse ethnic cleaning’ occurred with the Serbian community bearing the brunt of ethnic-Albanian animosity.1 Kosovo’s economy and political institutions were in a state of collapse and the majority of those who held administrative positions in the province had fled to Serbia. Clearly, UNMIK’s task was enormous and the environment within Kosovo was less than propitious. The terms of UNMIK’s competencies were detailed in Security Council Resolution 1244 on 10 June 1999. The resolution outlined the crisis in the province and determined that ‘situation in the region continues to constitute a threat to international peace and security’.2 The Resolution authorised the Secretary-General to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the

Facilitating Kosovo’s final status 127 people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.3 The details of UNMIK’s competencies were outlined in Paragraph 11 of the resolution and various subsections within this paragraph acknowledge the temporary nature of UNMIK’s tenure emphasising in a number of instances that these are competencies undertaken ‘pending a final settlement’ and ‘pending a political settlement’. Paragraph 11(f) similarly notes that UNMIK’s ultimate role is ‘overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement’. UNMIK was established to run for 12 months with further extension subject to annual review. The UN described its mission in Kosovo as ‘a sweeping undertaking that was unprecedented in both its scope and structural complexity’.4 UNMIK and the Special Representative (SR), in particular, wield unprecedented power. Acting on behalf of UNMIK, the SR has the power to dissolve the Kosovar assembly and call new elections, has final authority over the appointment, removal from office and disciplining of judges and prosecutors, exercises authority over law enforcement institutions, can withhold approval of the budget, conducts external relations and personally appoints the members of the Economic and Fiscal Council, the Governing Board of the Banking and Payments Authority of Kosovo, the chief executive of the Customs Service and Tax Inspectorate and the Auditor General.5 Through the powers vested in the SR, which Mertus describes as ‘virtually unlimited’,6 UNMIK has acquired the attributes of a government without accountability to the people of Kosovo. UNMIK is thus ‘exercis[ing] the sovereign prerogatives of a state’ and ‘functioning exactly like a government’.7 From the beginning, therefore, UNMIK constituted a new departure for the UN in terms of its aims and the operational powers it was afforded. As noted by Matheson, before ‘the end of the Cold War . . . the United Nations . . . had relatively little experience in the actual governance of territories . . . the UN role with respect to such territories was prescribed by agreement with the states involved, and typically amounted only to very general supervision, as actual governance was carried out by the state granted the trusteeship’.8 In Kosovo, UNMIK effectively acted without external

128 Aidan Hehir constraint and imbued itself with extensive political powers. These unprecedented competencies were legitimised on the basis that the situation in Kosovo was so dire that external administration was a necessity but also by the fact that this was a transitional phase; UNMIK was not established as a permanent locus of power in Kosovo and aimed to dissolve itself and hence rescind these extensive competencies.

Status, standards and stasis While rumblings of discontent within Kosovo were evident during UNMIK’s early years the extent of the discontent within the province became manifestly apparent in March 2004 when province-wide riots shattered illusions of progress. The fact that ethnic-Albanians, the community whose misfortunes ostensibly prompted the initial intervention, orchestrated the violence and destruction clearly demonstrated the extent to which UNMIK was failing in its mission. The creation of a multiethnic polity now seemed hopelessly unrealistic and in light of the obvious maintenance of violently different views as to Kosovo’s future UNMIK was prompted to significantly rethink the resolution of the province’s status. Whether the ethnic violence was caused by lingering ‘ancient ethnic hatreds’ or by UNMIK’s own institutionalisation of ethnicity within the new political system is debatable but it was clear that the ambiguity surrounding Kosovo’s future was a source of significant disquiet.9 The need for clarity regarding Kosovo’s future, and even the need to clarify the means by which this future would be determined, was initially expressly rejected by some. Writing in 2000 the Independent International Commission on Kosovo stated: ‘It might be better to leave questions about the future in limbo, since a constructive ambiguity about the political future of the province might make it easier for all sides to overcome their reluctance to work together.’10 This logic proved deeply flawed. Neither the Albanian or Serb communities found solace in this ‘constructive ambiguity’. And while both were divided as to what Kosovo’s future status should be, the need for clarity was a unifying aspiration. Mounting Albanian frustration at the political stasis boiled over into threats of violence against UNMIK. In March 2004 the ‘War Associations’, three interconnected organisations representing KLA war veterans, described UNMIK as ‘neo-colonialists’ and accused it of ‘carrying out the same policies applied by Serbia’. A subsequent headline in the Kosovar Albanian newspaper Epoka e Re warned, ‘UNMIK beware, KLA will burn you

Facilitating Kosovo’s final status 129 down’.11 Up until this point while UNMIK had achieved some success in reorganising the political institutions in Kosovo and holding elections,12 it had manifestly failed to redress the economic malaise and had expressly committed itself to the achievement of the eight standards, proposed by UNMIK amidst much optimism in December 2003, rather than resolving the issue of Kosovo’s final status.13 Prior to the March riots, UNMIK’s then SR Harry Holkeri told the Security Council that implementation of the Standards before Status policy was the ‘core political project’ for UNMIK stating, ‘the most urgent task [facing UNMIK] was to produce an implementation work plan setting out clearly the actions necessary to reach the standards’.14 Following the March riots the achievement of these standards was acknowledged as being highly unlikely in the medium term and by February of the following year Kofi Annan’s report on the progress of UNMIK acknowledged, ‘None of the eight standards have been fulfilled.’15 The standards issue subsequently came to be seen as part of the problem. In its seminal 2005 report the International Commission on the Balkans, in addition to asserting that the ‘international community has clearly failed in its attempts to provide security and development to [Kosovo]’, stressed the need for action on the substantive issue of status noting that the ‘demand for sovereignty has not diminished; on the contrary it has increased in the past year. UNMIK is perceived by the local population as corrupt and indecisive.’16 The seemingly futile attempt to achieve the eight standards clearly slowed down the process of status if the attainment of these standards was considered to be a necessary first step before any consideration of status could begin. UNMIK was, therefore, when wedded to the standards before status policy, mired in internal stasis as it worked on a policy that was having little tangible effect other than increasing disquiet in Kosovo. In the early phase of UNMIK’s tenure economic growth was considered to be a key determinant in the transformation of Kosovo’s conflict-ridden society. Unemployment and economic malaise were seen as ripe breeding grounds for nationalism and violent ethnic identification and, therefore, if these economic issues could be addressed it was argued there would be a commensurate reduction in inter-ethnic strife. Certainly, within Kosovo and the former Yugoslavia generally, economic decline has historically contributed significantly to the rise of nationalism. However, with respects to post-intervention Kosovo the logic of economic growth catalysing a reduction in inter-communal enmity has proved to be less readily applicable. The primary issue in Kosovo from 1989 onwards, and particularly from 1998 on, was

130 Aidan Hehir security, itself a function of sovereignty. With both Albanian and Serb communities capable of providing ample evidence to suggest that they will always be oppressed if power is vested in the other community the central issue of sovereignty is paramount. Therefore, the suggestion that all will be well if the economy is growing regardless of whether rule in Kosovo is exercised from Belgrade or Pristina appears to hold little water as the locus of power is considered paramount. As Van Meurs and Weiss note, ‘the current state of affairs in the region indicates that socio-economic transformation makes limited inroads as long as issues of state sovereignty and inter-ethnic power games dominate the regional and national agendas’.17 Clearly the sovereignty agenda does dominate and while there is ongoing ambiguity as to what Kosovo’s future status may be, it has proved impossible to avoid this dominant agenda. Aside from this theoretical problem, the reality has been that the economic situation in Kosovo has been dire and according to the Eide Report, ‘The current economic situation remains bleak.’18 Therefore, from both a theoretical and empirical basis the one issue that may have papered over UNMIK’s ambiguous stance regarding Kosovo’s status – economic regeneration – has had minimal effect on the politics of the province thereby increasing the need to focus on status.

The Eide Report: ‘future status and standards’ The riots of March 2004 clearly emphasised the need for clarity regarding Kosovo’s final status or at the very least clarification of the process by which this status could be determined. The explosion of violence demonstrated that emphasis on standards was not only unhelpful but positively detrimental to stability within the province. Van Meurs and Weiss described the standards as inappropriate as a litmus test for opening the door to independence. On the one hand, the standards before status fails to provide (negative and positive) incentives for the Serb minority and, on the other hand, the standards catalogue makes it too easy for Kosovar politicians to go for a D grade – ‘poor, but passing’; progress in some areas and serious deficiencies in others.19 The earlier normative evolutionary progression from the achievement of standards to the determination of status, necessitating as it would a lengthening of the status process, was therefore re-evaluated. The ‘Comprehensive Review of the Situation in Kosovo’ presented by

Facilitating Kosovo’s final status 131 Kai Eide to the UN in late 2005 sought to decouple status from standards to enable the process to progress. The Report is clear as to the problems evident in Kosovo and provides a particularly bleak assessment of the prospects of multiethnic harmony; ‘With regard to the foundation for a multiethnic society, the situation is grim . . . Multiethnicity is often not seen as a goal.’20 The Report finds that, ‘little has been achieved to create the foundation for a multiethnic society’.21 Whilst the Eide Report recognises the Standards before Status policy as having contributed to ‘a period of political stagnation and widespread frustration’22 it looks beyond the standards issue. While the goal of achieving the standards is not abandoned the delay that full implementation will necessarily cause is cited as reason for a new policy direction. Standards are described as ‘an important part of the dynamic’ but the Report calls for a more realistic implementation methodology and timeframe with the Secretary General himself noting, ‘the time has come to move onto the next phase of the political process’.23 This prognosis therefore suggests that central to the problem in Kosovo is the maintenance of the ‘constructive ambiguity’ regarding status and the expansive powers vested in the UN which are a function of the lack of status. Yet, while the Report argues for what amounts to the abandonment of the Standards before Status policy in favour of progressing to focus on Kosovo’s status, it does not suggest that the international oversight necessarily inherent in the standards process be rejected in favour of local ownership of an organic political process. Rather, the Report’s prescriptions arguably propose a great international commitment to governance in Kosovo. What Eide’s Report suggests is an extended mandate for international oversight, albeit in a less direct form, with, as the process’s final goal, a status for Kosovo that falls far short of sovereignty in any of the possible manifestations – independence, autonomous status within Serbia-Montenegro or absorption into Albania. The Report suggests, ‘Kosovo has entered a new period of dynamic development. A political process is underway and is gaining momentum. It is based on a comprehensive political strategy, which includes the prospects for a future status process.’24 Thus the dynamism ostensibly manifest in Kosovo is a product of a new direction leading towards a future rather then a final status. The report notes, ‘Entering the future status process does not mean entering the last stage, but the next stage of the international presence.’25 This next stage ‘will require constant and determined efforts, stretching into and beyond the process of defining the future status of Kosovo’.26 The process is

132 Aidan Hehir certainly altered but the fundamental components, international administration and the achievement of standards remain. It appears, therefore, that what has changed is not necessarily the importance afforded to standards but the normative timeframe by which they are expected to be achieved. From being the first hurdle to be overcome before status could be determined, the standards have become an ongoing concern once the status issue is progressed. As van Meurs and Weiss note, ‘the envisaged outcome [of the status negotiations] is a process rather than a fixed finalité’.27 The Report does not discuss the retreat of the international presence in Kosovo, but rather the need for a ‘reconfiguration’ that would involve the switch from the UN to the European Union (EU) to give the international presence greater ‘leverage’.28 The Report outlines the nature of the international engagement required and it is clearly extensive. The reconfigured international administration will comprise four organisational elements. UNMIK will transfer competencies to the EU which ‘will be expected to take on a more prominent role’ specifically in the areas of police and justice, ‘monitoring and supporting the standards process’, and to ‘a focused capacity-building effort’.29 Security in the province will have to be maintained by NATO which, ‘will have to continue its presence’.30 The OSCE will be required ‘to enable the international community to monitor and support standards implementation, promote confidence between ethnic communities and identify needs for capacity building’.31 The fourth international pillar will comprise an ‘EU/US/International Community’ coalition through which a new office of High Representative will be created; ‘Such an arrangement should be firmly anchored in the EU, while at the same time ensuring continued commitment by the broader international community, in particular the United States.’32 In respect of this ongoing arrangement the Report refers to the international engagement in Bosnia as a template to be emulated and calls specifically for the creation of ‘a “Bonn Powers” arrangement’.33 In terms of the role local actors can play in the process it is clear that there is a desire to see Kosovar politicians engage in the process but an evident lack of belief in the ability of Kosovars to independently manage the process. The Report acknowledges, ‘The government [in Kosovo] has now elaborated its own programme for capacity-building, in an effort to take greater ownership of this process.’ It subsequently adds, however, ‘Nevertheless, an emerging sense of local ownership will not reduce the need for international support. Capacity building will require a longer-term perspective.’34 The implementation of the agreed arrangements on Kosovo’s future status will

Facilitating Kosovo’s final status 133 require an ‘international presence – military and civilian – . . . to manage the implementation of the settlement in a stable and orderly way’.35 The orderly and stable implementation of a settlement is therefore envisaged as possible only under international control. The Report’s central paradox – the enthusiastic expression of support for the dynamic process that will lead to local ownership contrasted with a clear belief that extensive international management will be required for the long term – is encapsulated in the following; Kosovo cannot remain indefinitely under international administration. However, it will continue to depend on a significant international presence on the ground. The support needed in so many areas cannot be provided by remote control. The international community must have the stamina required. Ensuring the future status process does not mean entering the last stage, but the next stage of the international presence.36 Essentially the Report is advocating a phased pullout, though no timetable for international disengagement is offered, while arguing for ongoing direct, as opposed to ‘remote’, international control.

EU neo-trusteeships The Eide Report comprises the UN’s perspective on the manner in which the political process in Kosovo should develop. It is clear that the Report envisages a key role for the EU in Kosovo’s future and advocates the transference of administrative competencies from UNMIK to the EU in many important areas. This complements the proposals outlined in the 2005 Report by the International Commission on the Balkans (ICB), ‘The Balkans in Europe’s Future.’ The ICB is clear as to the importance of Kosovo and the wider Balkans to the EU’s future; ‘We are convinced that the international community and the EU in particular has a historical responsibility to face and a decisive role to play in winning the future for the region.’37 While this responsibility compels the EU to act, the Report is clear as to the incentives cooperation with, and eventual membership of, the EU, for the people of the region. The ICB claims that the EU holds the only solution to the Western Balkans ‘turning into the black hole of Europe’.38 Elsewhere the ICB argues ‘the Balkans are faced with a clear choice; to be part of the European Union or to be a marginalised ghetto’.39 The ICB describes this ‘ghetto’ as comprising ‘most of the Balkans peoples herded behind a wall of visa restrictions that blocks

134 Aidan Hehir a desperate population from seeking work elsewhere’.40 This grim future outside the EU therefore compels the ICB to state, ‘The question is no longer “What should be done?”. We should clearly bring the region into the EU.’41 The ICB Report, in outlining what needs to be done suggests, ‘In the Balkans the accession strategy should be a mixture of classical state-building policies with those aimed at transforming nation-states into member states. What we face in the Balkans is a need for “member-state-building” strategy.’42 The ICB report outlines the four stages through which it believes Kosovo should proceed. The first stage, described as ‘the status quo’ as defined by Security Council Resolution 1244, has been achieved and Kosovo is thus now in stage two, ‘independence without full sovereignty’. This present stage is characterised by the achievement of standards and status and is seen as the precursor to stage three ‘guided sovereignty’. In this next stage international actors reserve administrative competencies in a number of key areas but encourage the local political institutions to take an increased role. The final stage, ‘shared sovereignty’ comprises full EU membership for the states of the Balkans, including Kosovo. By implication, Kosovo is therefore to be afforded sovereign status but it is a sovereign status that is contingent on other states in the region, Serbia and Montenegro in particular, joining the EU at the same time. It appears therefore, that the proposed solution to the status issue is ultimately to induct all the relevant Balkan states into the EU. Here they will all be afforded shared sovereignty status and thus the issue of sovereignty and independence will be negated by membership of the EU which will be of such benefit that the desire for outright independence will evaporate. The need to bring the Balkans fully into the EU, while presented as obviously good for the Balkans, is described as a necessity for the EU if it is to avoid the charge that it is engaged in a form of neo-imperialism. The ICB is cognisant of the image the ongoing international administration of Bosnia and Kosovo presents and this is a clear incentive to initiate the means by which the Balkan states can become fully fledged members of the EU. The ICB thus warns, ‘If the EU does not devise a bold strategy for accession...it will become mired instead as a neocolonial power in places like Kosovo . . . The real choice the EU faces in the Balkans is Enlargement or Empire.’43 The approach taken to Kosovo lends itself to theories suggesting a neo-imperialist agenda on the part of international actors involved with the region. While ample evidence can be mustered to support this, it seems more likely that the emphatic belief in the necessity of EU involvement and ultimately EU membership is born more from

Facilitating Kosovo’s final status 135 what might be described as a pro-Western fundamentalism that sees the EU as the paramount political organisation. This emphatic belief manifests as an almost religious mission, carried out with single-minded zealotry, to induct outsiders into the EU club. Certainly the presentation of the choice facing the Balkans as one between enlightenment and chaos has religious overtones and suggests an absolutism that may exaggerate both the benefits of EU membership and the hazards of non-membership. EU enlargement is described as an ‘unambiguously positive achievement’ and ‘nothing short of a political miracle’ the benefits of which for new members are obvious.44 Prior to the full absorption of Balkan states into the EU they must meet the EU’s accession criteria whereby certain economic, legal and political reforms must be initiated. While Slovenia has completed this process and Croatia and Macedonia are currently engaged in implementing the necessary reforms, the status of Bosnia and Kosovo is different. These areas, owing to their violent past and the ethnic cleavages still manifest within each polity, have become what Van Meurs and Weiss describe as ‘EU neo-trusteeships’ and require more extensive international guidance in the pre-membership phase.45 The EU is therefore positioning itself as the only alternative to ghettoisation and the process of attaining salvation through EU membership, in the case of Kosovo, requires the maintenance of an international administration without democratic accountability to the people it governs and no definite timetable for the transference of what were initially established as temporary competencies to the citizens of Kosovo. Therefore, the Eide Report’s enthusiasm for the new phase in Kosovo’s progression could well prove to be misplaced. While Eide acknowledges the frustration that the old policy caused, with its inherent ambiguity regarding status and the maintenance of direct international control, there is little in the new policy which Eide champions that could not be construed as comprising the old policy repackaged. The key features of the old Standards before Status policy that provoked the explosion of violence in March 2004 is clearly part of the new strategy. One must be somewhat wary, therefore, of over-optimism regarding the effect of the ‘new dynamism’ in Kosovo.

Kosovo and the future status of the UN The EU’s involvement in Kosovo is presented by the ICB as overwhelmingly good for Kosovo and a historic responsibility for the EU and thus the relationship between the EU and Kosovo can be conceptualised as

136 Aidan Hehir akin to benevolent saviour and needy beneficiary. The relationship between the UN and Kosovo appears to be less manifestly asymmetrical. The evident desire among key international actors to maintain significant governmental competencies in Kosovo could be construed as constituting some covert form of neo-imperialism. However, as discussed previously the EU’s motivation appears to be derived from a single-minded belief in its own unique ability to transform the Balkan region. With respects to the factors compelling the UN to seek to extend its mandate there is evidence to support the notion that the motivation may stem from self-interest, or more accurately selfpreservation. As Matheson notes with respect to the UN missions in Kosovo and East Timor, [They] represent a very considerable change in the degree to which the United Nations will assume responsibility for the governance of territories that have been severely affected by conflicts. Obviously, they raise serious policy questions about the practical capability of the United Nations to perform this role, the longterm political viability of relying on the United Nations to bear such burdens, and the availability of feasible alternatives to the United Nations for this purpose. Much will depend on whether the Organisation is ultimately judged to have succeeded or failed in Kosovo and East Timor.46 Echoing these sentiments Eide’s Report notes, ‘Determining the future status of Kosovo will in itself be a demanding challenge. The international community must do the utmost to ensure that, whatever the eventual status, it does not become a “failed” status.’47 There is thus an importance inherent in the mission in Kosovo that goes beyond improving the lives of Kosovars. Kosovo has become something of a state-building gerbil, a test case that has implications far beyond Kosovo’s borders.48 The creation of a viable polity in Kosovo is no longer a goal born exclusively from an altruistic desire to make the lives of Kosovo’s citizens better but to prove that the UN is capable of successfully undertaking these operations, and hence, providing it with a clear raison d’être. If the primary aim is not therefore directly related to the internal situation in Kosovo there is hence no especially pressing need to accelerate the transference of competencies to the Kosovars. An extended period of administration under UNMIK and later the EU, though opposed by the people on the ground, is necessary if this is what is required to maintain the credibility of the state-building project. The clear reluctance to transfer competencies to local political

Facilitating Kosovo’s final status 137 institutions can thus be explained not by neo-imperialism but by the UN’s desire to be seen to have succeeded in Kosovo and its commensurate unwillingness to jeopardise this success by divesting control to the Kosovars themselves.

Conclusion: ‘changing the goalposts’ The Eide Report and ICB Report offer similar prescriptions for Kosovo’s future. Both acknowledge that the Standards before Status policy, the initial focus of UNMIK’s efforts, has proved counterproductive and that the resultant mounting frustration within Kosovo necessitates focusing on the status issue immediately. Additionally both reports proffer similar proposals for Kosovo’s status which define a significant role for international actors in the governance of Kosovo. The move away from the Standards before Status policy is thus not as radical as the Eide Report in particular suggests and it is clear that the forthcoming focus on status will not produce anything like sovereignty in Kosovo. Indeed the process is being described as offering, ‘the prospects for a future status process’.49 The problem in Kosovo which at least ostensibly prompted NATO’s intervention was the high level of antipathy between the ethnic Albanian and Serb communities. The professed goal of UNMIK was to create an agreed solution to the contentious issue of sovereignty in Kosovo and in the interim, to enable the political and economic system to function. UNMIK never suggested that the solution to the crisis necessarily involved the maintenance of a permanent international presence acting as a buffer between the communities, overseeing their interactions and intervening when deemed necessary in the economic and political system. In fact, precisely the opposite goal, that is, local control, was championed. Yet, the optimism currently expressed in some quarters with respects to Kosovo’s future is not based on the conviction that international involvement will soon be rendered unnecessary because an inter-communal agreement is about to be reached, but rather that Kosovo’s political and economic system can now be made to function and that inter-communal strife can be minimised via the maintenance of international oversight in the region. Therefore, the nature of the original problem and the intended solution to this problem have both changed and it is the viability of these new solutions to a different problem that seems to have generated a sense of accomplishment. Therefore UNMIK is being lauded for solving a problem it never identified as its key concern via a solution it expressly sought to avoid.

138 Aidan Hehir The parallels with Bosnia are pronounced, both in terms of the international institutions involved in both administrations and the manner in which the international administration has demonstrated a marked reluctance to rescind its powers and has in fact gradually increased its powers over time. As noted by O’Halloran, The benchmark for both Bosnia and Kosovo was their demonstrated capacity to hold free and fair elections in a safe environment. The benchmark was later changed in Bosnia to the point in time at which the HR considered peace, liberal democracy, good governance, and a market economy to be self-sustaining. It would thus seem that the democratic prerequisites for a transfer to complete autonomy in Bosnia grew over time. Similarly in Kosovo the SRSG does not yet consider the population ready to move from externally controlled provisional self-government to self-rule.50 The record of the international administration in Bosnia suggests that administrations of this nature find it difficult to return power to local institutions and in fact gradually increase their powers and their remit. It seems therefore that Kosovo’s status is too significant for the reputation of the UN and the EU to be left to Kosovars to determine. International administration of the province is set to continue and the goal of the status talks is now to determine Kosovo’s future status rather than its final status. The ICB report has been most inclined to speculate about Kosovo’s ultimate status and its shared sovereignty within the EU. One has to wonder if this will be a sufficiently attractive carrot to persuade those Albanian militants who waged a war of independence against Milosevic and later turned their anger against UNMIK to accept a prolonged period of administration. Some form of shared sovereignty with the EU is without doubt far less then they called for 1989, 1999 or 2004.51 In their analysis of the international administrations in Bosnia and Kosovo Knaus and Martin identified two dynamics that have characterised these missions; ‘moving the goalposts’ and the reluctance to relinquish powers.52 Certainly the endpoint UNMIK was initially working for has changed and the powers vested in the SR have not diminished. An examination of the detail contained in the new policy for Kosovo certainly suggests that the international administration envisages a long-term role for itself. This supports the conclusion reached by Knaus and Martin regarding international administrations; ‘No mission should be relied upon to impose limits on itself.’53

Facilitating Kosovo’s final status 139 The ambiguity surrounding Kosovo’s final status led to the March 2004 riots and the new determination within the UN that something had to be done about the status issue. Yet, the new policy analysed above clearly contains many of the central elements which have proved an anathema to the people in Kosovo. Writing in 2000 then SR Bernard Kouchner pointed to the problems that the ambiguity inherent in UNMIK’s mandate and Kosovo’s future status would provoke. ‘If the future situation is not clear, it is going to be difficult for us to get these two communities to deal with each other and with us.’54 This prediction bore fruit in 2004; yet appears to have been ignored again in this new phase of administration. UNMIK’s record in Kosovo has significant implications for state-building globally and underlines many of the key dilemmas inherent in this increasingly prevalent and vaunted practice. If Kosovo is indicative of a broader trend then it is evident that a clear goal must be established at an early stage if any international administration is to achieve a lasting resolution of the underlying problem and avoid a potentially limitless engagement in a region.

Notes 1 Leurdijk, D. and Zandee, D. (eds), Kosovo: From Crisis to Crisis, Aldershot: Ashgate, 2001, p. 117. 2 Security Council Resolution 1244, S/RES/1244, 10 June 1999. 3 Security Council Resolution 1244, S/RES/1244, 10 June 1999, para. 10. 4 UNMIK, ‘UNMIK at a Glance’, Available at http://www.unmikonline.org/ intro.htm (accessed April 2006). 5 Constitutional Framework for Provisional Self-Government, UNMIK/ REG/2001/9, 15 May 2001, section 9/1/3 b.ch.8. 6 Mertus, J., ‘The Impact of Intervention on Local Human Rights Culture: A Kosovo Case Study’, in Lang, A. (ed.) Just Intervention, Washington, DC: Georgetown University Press, p. 162. 7 Blair, S., Weaving the Strands of the Rope, Dalhousie: Centre for Foreign Policy Studies, 2002, pp. 10, 40. 8 Matheson, M., ‘United Nations Governance of Postconflict Societies’, The American Journal of International Law, vol. 95, no. 1, 2001, p. 76. 9 For an analysis of each perspective see, Hehir A., ‘Autonomous Province Building: Identification Theory and the Failure of UNMIK’, International Peacekeeping, vol. 13, no. 2, 2006, pp. 200–14. 10 Independent International Commission on Kosovo, Kosovo Report, Oxford: Oxford University Press, 2000, p. 261. 11 Quoted in Human Rights Watch, Failure to Prevent, vol. 16, no. D, July 2004, p. 17. 12 See Taylor, A., ‘Electoral Systems and the Promotion of “Consociationalism” in a Multi-ethnic Society. The Kosovo Assembly Elections of November 2001’, Electoral Studies, vol. 24, 2005, pp. 435–63.

140 Aidan Hehir 13 The eight standards are outlined in UNMIK press release PR/1078, ‘Standards for Kosovo’, 10 December 2003, available at www.unmikonline. org/press/2003/pressr/pr1078.pdf (accessed April 2006). 14 UN Security Council Press Release, SC7999, 6 February 2004. 15 UN Security Council, ‘Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo’, S/2005/88, 14 February 2005. 16 International Commission on the Balkans, The Balkans in Europe’s Future, 2005, available at http://www.balkan-commission.org/activities/ Report.pdf (accessed January 2006), pp. 19, 20. 17 Van Meurs, W. and Weiss, S., ‘Qualifying for Sovereignty: Kosovo’s PostStatus Status and the Status of EU Conditionality’, Bertelsmann International Relations Programme Project ‘Europe’s Global Responsibility’, 6 December 2005, p. 10, available at http://www.cap. lmu.de/download/2005/2005_kosovo.pdf (accessed January 2006). This sentiment is echoed in the International Commission on the Balkans, The Balkans in Europe’s Future, 2005, available at http://www.balkancommission.org/activities/Report.pdf (accessed January 2006), p. 13. 18 Kai Eide, ‘A Comprehensive Review of the Situation in Kosovo’, UN Security Council Report S/2005/635, 7 October 2005, p. 2. 19 Van Meurs, Wim and Stefani Weiss, ‘Qualifying for Sovereignty: Kosovo’s Post-Status Status and the Status of EU Conditionality’, p. 5. 20 Kai Eide, ‘A Comprehensive Review of the Situation in Kosovo’, UN Security Council Report S/2005/635, 7 October 2005, pp. 3–4. 21 Ibid., p. 14. 22 Ibid., p. 2. 23 Ibid., pp. 1, 2. 24 Ibid., p. 2. (Emphasis added.) 25 Ibid., p. 5. 26 Ibid., p. 8. 27 Van Meurs, Wim and Stefani Weiss, ‘Qualifying for Sovereignty: Kosovo’s Post-Status Status and the Status of EU Conditionality’, p. 6. 28 Kai Eide, ‘A Comprehensive Review of the Situation in Kosovo’, UN Security Council Report S/2005/635, 7 October 2005, p. 21. 29 Ibid., p. 21. 30 Ibid., p. 21. 31 Ibid., p. 21. 32 Ibid., p. 21. 33 Ibid., p. 21. 34 Ibid., p. 10. 35 Ibid., p. 21. 36 Ibid., p. 22. 37 International Commission on the Balkans, The Balkans in Europe’s Future, 2005, available at http://www.balkan-commission.org/activities/Report.pdf (accessed January 2006), p. 8. (Emphasis added.) 38 Ibid., p. 8. 39 Ibid., p. 28. 40 Ibid., p. 12. 41 Ibid., p. 9. 42 Ibid., p. 14.

Facilitating Kosovo’s final status 141 43 Ibid., p. 11. 44 Ibid., p. 28. 45 Van Meurs, W. and Weiss, S. ‘Qualifying for Sovereignty: Kosovo’s PostStatus Status and the Status of EU Conditionality’, p. 13. 46 Matheson, M., ‘United Nations Governance of Postconflict Societies’, p. 83. 47 Kai Eide, ‘A Comprehensive Review of the Situation in Kosovo’, UN Security Council Report S/2005/635, 7 October 2005, p. 22. 48 The authors of The Quest for Viable Peace, all of whom at certain points held significant positions within UNMIK, describe the UN administration of Kosovo as ‘a fertile source of innovation . . . a harbinger of many of the central challenges associated with transforming internal conflict that would beleaguer subsequent interventions in Afghanistan, Iraq, Haiti, and various locations in Africa’. Dziedzic, M. and Hawley, L., ‘Introduction’, in Covey, J., Dziedzic, M. and Hawley, L. (eds), The Quest for Viable Peace, United States Institute of Peace Press, 2005, p. 6. 49 Kai Eide, ‘A Comprehensive Review of the Situation in Kosovo’, UN Security Council Report S/2005/635, 7 October 2005, p. 2, (Emphasis added). 50 O’Halloran, P., ‘Post-Conflict Reconstruction: Constitutional and Transitional Power-sharing Arrangements in Bosnia and Kosovo’, in Sid Noel (ed.) From Power Sharing to Democracy, Montreal: McGill Queens University Press, 2005, p. 114. 51 1989 was the year the unofficial Kosovo assembly declared independence. 1999 was the year in which NATO and the Kosovo Liberation Army (KLA) drove the Yugoslav forces from Kosovo and in March 2004 ethnic Albanians orchestrated a province-wide riot calling for outright independence. 52 Knaus, G. and Martin, F., ‘Travails of the European Raj’, Journal of Democracy, vol. 14, no. 3, July 2003, p. 69. 53 Ibid., p. 73. 54 Bernard Kouchner, UNMIK Press Release UNMIK/PR/180, 7 March 2000.

8

Building state failure in East Timor Jarat Chopra

Introduction A paradox plagues international interventions that attempt to rebuild states that have ‘failed’ or introduce the Westphalian model where it never really existed. Perceptions of a power vacuum created by governmental breakdown or the departure of an occupier have drawn the world community into an ever more intensive role in the exercise of transitional political authority. Yet the task of state building as an emergency response seems self-defeating. It is impractical – within a short space of time – to reestablish an executive, legislature and judiciary that did not work, or to construct them without historical foundations and where no conditions prevail for their animation. A debate emerged in the 1990s regarding responses to anarchy, or the appearance of a void in the absence of any recognizable state machinery. Far from solving the puzzle, however, this polarized disagreement altogether missed the fact that the population continues to exist, that market forces of whatever kind are always at work, and that the social structures of indigenous communities invariably generate sources of political legitimacy according to their own paradigm – throughout the time of the state before it collapsed or the foreign occupation before it left, and in the wake of both.1 Some argued vigorously for a return to colonialism, favouring order over justice and forgetting why foreign domination may have been opposed. At the opposite extreme, angry scholars in Western universities ‘constructed narratives’ or ‘engaged in a discourse’ that presented all forms of intervention as racist. Somewhere in between, the peace operations cognoscenti struggled to redesign the increasingly complicated architecture of intervention. Inter-state peacekeeping, as traditionally conceived, was proving inadequate in the challenging environments of internal conflicts that the

Building state failure in East Timor 143 United Nations had entered after the end of the Cold War. A symbolic referee along a thin blue line between the armies of coherent and supposedly accountable governments, the UN now found itself in environments in which factions or splinter groups tested the mettle of unarmed observers or defensively armed peacekeepers. A ‘second generation’ of missions had come into being. A doctrine for the multinational use of limited force was developed.2 Experiments were conducted in peace-enforcement in, for instance, Somalia, Haiti and the Balkans. Their ineffectiveness indicated that the UN was not configured to exercise tough military operations collectively. The task instead fell to multinational coalitions of the willing, with a blessing from the Security Council. In the meantime, it was becoming clear that the military instrument could only respond to some of the symptoms of conflict. It was equally unable to provide an operational umbrella for the multiple civilian actors deployed in ‘complex emergencies’ in the humanitarian, developmental, electoral, administrative, judicial, policing and related sectors. In order to address the underlying political sources of conflict, and to achieve harmonization throughout the elements of the intervening community, an international exercise of transitional executive powers was required. So-called peace-maintenance as a doctrine envisioned varying measures of intrusion depending upon the degree of state failure or total collapse (or purposeful destruction); the degree of political coherence or fragmentation; and the degree to which there was imagined to be a governmental tabula rasa.3 The escalating type of activity included assistance to weak local authorities (as now in Afghanistan), partnership with a coherent national liberation movement or withdrawing occupier (as in Namibia), and control of divided factions (as in Cambodia). A final category was the total but temporary governorship of a territory and its population. ‘Transitional administrations’ were applicable when the reigning polity had disintegrated (in places like Somalia), the sovereign had been forced out (as from Kosovo), or the occupying power was transferring the territory to another sovereign (as were Eastern Slavonia or the Brcko Corridor). In East Timor, disintegration resulted from the radical withdrawal of an occupying power and the comprehensive destruction of any semblance of a governing apparatus. If doctrinal evolution reached an apex with transitional administration and the international assumption of executive and legislative powers, global governorship achieved a kind of apotheosis in East Timor. Here not only would administrative functions be assumed more totally than ever before, the body corporate

144 Jarat Chopra of the intervention would inherit the status of sovereignty – something that had not happened at the international level since the fall of the Holy Roman Empire and the 1648 Treaty of Westphalia. In effect, it would be state building through UN statehood. This project assumed a state-centric terra nullius and an open season on institutional invention. East Timor was not, however, a political no-man’s land. In a sense, there is never a vacuum as long as there is a population. There is a profound difference between anarchy defined as the absence of a national executive, legislature and judiciary, and the actual breakdown of indigenous social structures. If this point appears obvious, then it was absurd and extraordinary to exclude the population from the paradigm of transitional administration. Two factors were at fault. The first was a blind ambition borne of bitter experience in Somalia, Afghanistan and elsewhere. The disarray of disparate international actors – divided amongst themselves amidst resilient warlords in the area of operation – was to be overcome by unifying the interveners under a single political authority. Underlying causes of conflict were to be tackled by taking control of their political source and fundamentally transforming its dynamics. By taking power actually on the ground, it could then be transferred to a newly minted state machine and its head and its officials. But how could any of this be done without the participation of the local population, either ethically or functionally in terms of the mantra of the day: ‘capacity building’? The role of the local population was conceptually obscured by the drive to overcome problems in past missions. The second factor was malevolence on the part of international officials. The unprecedented powers to be assumed by the UN attracted the very type of individual who would be intoxicated by that thought. The mission itself was corrupting, even for individuals who were not already pursuing power for its own sake. Put in a certain structure and context, foreign staff exhibited colonial-style behaviour. The economic disparity was so great, the local people were so weak, it was difficult to resist the temptation of superiority (thus, chalking up to the angry scholars of racism their point). Many felt that the Timorese could not be relied on, that they lacked skills and were not ready for self-government, that the UN should stay and its personnel could keep their jobs for longer. Some officials even attempted methodically to prevent the participation of Timorese in the transitional government of the country. They wanted to wield unfettered their newfound authority and spend the hundreds of millions of dollars committed by the world’s donors.

Building state failure in East Timor 145 The first factor – trying to solve a set of puzzles while not accounting for unintended consequences – permitted the second: the abuse of what should have been a sacred trust. Although rationalizations were built into the doctrine of peace-maintenance – it was claimed to be distinguished from colonialism by, for example, the fact that the administering apparatus was a servant and not a master of the local population4 – safeguards were not built in. They were also bluntly missed in the actual operational planning of an absolutist form of authority. In addition to popular participation from the beginning, what was particularly needed was a separation of powers and (more significantly) space for opposition to the transitional administration. These things are unlikely to develop if the transitional period does not foster a culture of freedom of expression and disagreement. Multiparty elections and the one-time marking of a ballot paper in the midst of authoritarian rule by the UN is not a means of instilling democratic values.5 Opposition will inevitably form, and if it does not have a peaceful outlet within the system, it finds another channel. Relying on an inclusive government of national unity to facilitate the passage of powers from an absolutist transitional administration to some semblance of central authority has inherent long-term dangers. In East Timor, the outcome is a division of loyalties, with the politicized armed forces proclaiming allegiance to a President powerless under the constitution, and the Prime Minister who is quickly establishing oneparty rule probably complicit in the rise of independent security forces.6 The current international approach to state building in Afghanistan seems to have reversed the trend of increasingly intensive interventions and has reverted to the opposite end of the scale: assistance, as enshrined in the November 2001 Bonn Agreement. The questions of participation are no less acute, however. A doctrinal concept for more participatory forms of intervention is required as a step beyond peacemaintenance and the limitations of transitional administration. It is as if a story about the containment of international statehood and its pre-constitutional form of kingship is paralleling, several centuries later, the process that occurred nationally, with the passage of power from a monarch to a parliament, bloody revolutions, and the philosophical qualification of Bodin’s sovereignty for the prince by Rousseau’s popular sovereignty.

United Nation’s statehood In a UN-sponsored ‘popular consultation’ on 30 August 1999, 78.5 per cent of East Timorese rejected an arrangement of autonomy

146 Jarat Chopra integrated within Indonesia and voted in favour of independence. There was a 98 per cent turnout despite Indonesia’s control over security throughout the process, pursuant to the 5 May 1999 Agreement between the UN, Portugal and Indonesia regarding the terms of the referendum. Some UN officials negotiating the agreement had wanted to obtain a disarmament provision from Indonesia preceding the ballot, but Portugal and the Secretary-General’s Personal Representative for East Timor, Jamsheed Marker, did not believe the Indonesians would agree to it. Nor would the UN have any means to verify the integrity of a disarmament clause. The best deal considered possible at the time was Indonesia’s retention of responsibility for security conditions, while the UN organized and conducted the ‘popular consultation’. The UN acted quickly, deploying an electoral mission by the end of June, but throughout July Indonesia failed to fulfill the basic minimum security guarantees it had committed to, including freedom of movement, assembly and expression. Violent incidents continued. The date of the ballot was postponed until August, but the same conditions persisted throughout that month. The UN was prepared to postpone the ballot again, but Xanana Gusmão, President of the National Council of Timorese Resistance (CNRT), asked them to proceed. He insisted that, although there had been no fair campaigning period, the people understood the issues and were prepared to vote. By now, there were strong indications of the violence to come. The independence vote triggered a three-week campaign called ‘Operation Clean Sweep’, in which Indonesian armed forces and locally-organized militia reduced buildings to rubble and executed hundreds, possibly upwards of 2,000, East Timorese (the final figure remains to be determined). More than three-quarters of the country’s population of 890,000 were displaced. Indonesian families and friends fled the scene. The remaining Timorese either escaped into the steep hills of the interior or were forcibly removed to West Timor or neighbouring islands. The main cities and remote towns and villages were laid waste by hand, with inflammable accelerants and torches, melting or disembowelling 70 per cent of the physical infrastructure. Some places suffered above 95 per cent destruction in street-by-street burnings. Worse still, and impossible to reconstruct for a generation, was the removal in a single stroke of nearly all but the bottom layer of the human resources skills base. The UN’s original scheme in the event of an independence outcome was a three-stage process. The ‘popular consultation’ was the objective of a first United Nations Mission in East Timor (UNAMET). A precarious two to three month period would follow, in anticipation

Building state failure in East Timor 147 of the acceptance of the results by the Indonesian People’s Consultative Assembly, during which UNAMET II civil affairs officers were to prepare for a longer-term UN presence. Then, through the spring of 2000 UNAMET III, as a transitional authority, would manage the gradual withdrawal of Indonesia’s military units and administrative apparatus and assume control itself, piece by piece. The operating assumption in these plans of an orderly transfer of power had to be discarded after the events of September 1999 and the deployment of an Australian-led International Force in East Timor (INTERFET). Instead, an entirely new mission was devised. The United Nations Transitional Administration in East Timor (UNTAET) replaced all pre-existing authorities in the territory when the Security Council approved its mandate on 25 October in Resolution 1272. UNTAET became in every respect the formal government of the country. Both legislative and executive powers were vested in a single individual, the Special Representative of the Secretary-General and Transitional Administrator, Sergio Vieira de Mello. He had the sole authority to issue ‘regulations’ as national legislation in the absence of an elected legislative assembly. The practice was to present draft regulations to a national council chaired by the UN Transitional Administrator and composed of Timorese appointed by de Mello. Consultation was a courtesy, but legally de Mello could have overruled any council decision and signed or rejected any regulation. UNTAET was unique amongst experiments in transitional administration, since it was the first time the UN had assumed its role independently of any competing authority. In Eastern Slavonia (1996–98) and Kosovo (since 1999), for instance, Croatia and Serbia respectively constituted the recognized sovereign. In East Timor, Portugal, the former colonial power for five centuries was treated as the lawful administering authority throughout the twenty-four years of Indonesia’s occupation; only Australia had recognized Jakarta’s claim. On 20 October 1999, Lisbon’s representative in New York, Ambassador Antonio Monteiro, told UN officials that Portugal would relinquish its legal ties to East Timor and consider UNTAET its successor with the passage of the Security Council mandate. No other written expression on the part of Portugal was required. Resolution 1272 was the instrument for bestowing sovereignty over East Timor to the UN. When a delegation of Indonesian representatives met later that day with the same UN officials to deliver their acceptance of the election results, they were informed that no such formality was required since the UN never recognized the legitimacy of their occupation.

148 Jarat Chopra Agreements with financial institutions affirmed that the UN had achieved a form of statehood in East Timor. From the outset, the World Bank was integrated in an unprecedented manner in a UN mission. The International Development Association (IDA) of the World Bank was designated the trustee of the reconstruction Trust Fund for East Timor (TFET). According to its Articles of Agreement, the IDA can provide funds to sovereign governments or public international organizations. The terms of reference of the TFET, however, treated UNTAET as a separate government rather than as part of the UN as an international organization. During the negotiations between UNTAET and the World Bank regarding the Community Empowerment and Local Governance Project (CEP), the UN had wanted to reduce the status of the agreement to a memorandum of understanding between the two institutions. The World Bank refused and demanded the stature of an international treaty between the IDA and a sovereign government. Whether they liked it or not, UN legal officers could not avoid the mission now having to recognize its own juridical status. The CEP Grant Agreement defined ‘Recipient’ as East Timor and UNTAET, and it had to be signed by the Transitional Administrator as the head of state and not merely as a representative of the UN. This was not a matter of convenience: UN Secretary-General Kofi Annan was in Dili at the time of the negotiations, but he would not have been permitted to sign.

District administration One of the key experiments of UNTAET was the decentralization of political authority in the form of ‘district administration’. The aim now was to directly administer, not merely the mission’s own organization, but actual territory and its population, as well as to integrate at the local level the multiple dimensions of the operation, in a kind of ‘dual mandate’. Territory cannot be properly managed, nor capacity built for selfsustaining governance, without delegation of powers to smaller units of land and people. This assumption is taken for granted in any functioning state, but it runs contrary to the hierarchical and centralized structures of UN peace missions. In Cambodia, for instance, transitional ‘authority’ was exercised by separate chains of command in each sectoral component extending from the headquarters in the capital city, Phnom Penh, to the provinces. Although the civilian Provincial Director was supposed to have primacy over all the elements in the immediate area of operation, that individual had no

Building state failure in East Timor 149 means of enforcing instructions and challenging independent reporting lines. Zone Directors in Somalia faced similar difficulties. In purist terms, a UN ‘authority’ implies the co-existence of a local government or faction exerting varying degrees of effective control over the territory in question. An international ‘administration’, however, suggests full responsibility for the functions of government. Shifting from one to the other required fracturing the Cambodianstyle chains of command and reconstituting the elements of a mission under a local executive – in the case of East Timor, the District Administrator (DA). There had of course been antecedents in the municipalities and regions of Eastern Slavonia and Kosovo, the city of Mostar and the Brcko corridor. For UNTAET, however, decentralized, local administration was designed in its most complete form to date, even though it was at profound variance with the hierarchical subculture of the UN system.

Decentralization By the end of the 1990s, the doctrinal quarters of peace operations increasingly converged on ideas for comprehensive, political missions. The UK established a Joint Defence Centre to develop high-level joint strategic doctrine, promote civil–military operations with multiple actors, and provide long-term conceptual assessment. The NATO peace operations manual was redrafted in this light and circulated to member states for comment. Most notably, the US created its May 1997 Presidential Decision Directive-56 process. Initiated after an internal review of the Somalia experience and first tested in Haiti, it was built on five central pillars: an executive committee for unified management; a political–military implementation plan; US interagency rehearsals; after-action reviews; and interagency training. It was an American document for better co-ordination in Washington, and its sound principles needed to be internationalized. In spring 1999, this doctrinal step was taken through development of a genuinely international concept of operations for exercising executive and legislative authority in transition, at all levels of a mission – operational (national) and tactical (district). A draft was presented at the US Chairman of the Joint Chiefs seminar on peace operations at the US Army Peacekeeping Institute in June. It was subsequently debated later in the month at a meeting of Force Commanders and Special Representatives of the UN Secretary-General. During the planning of UNTAET in September and October, the draft was reduced to a two-page job description for the DA and then

150 Jarat Chopra further shortened to a single paragraph. Although retaining the essence of the concept of operations, the brevity of these sentences meant they were now out of context. Yet they were circulated to member states as the basis for recruiting the backbone of the mission. It was clear at a meeting of contributing member states that neither the meaning of district administration nor the nature of the DA had been adequately communicated. The profile of candidates being identified did not meet the expectations of the thinking behind the position. The original design of the DA’s terms of reference was comprehensive and unambiguous. To take root, an abstract, distant ‘international administration’ had to be personalized day-to-day in even the remotest villages. The real test and measure of success of the DA, and therefore of the international effort as a whole, would be whether it improved the ordinary lives of individuals and won the confidence of the population. To achieve this goal, the DA would have supreme executive authority in the district, and needed to be understood to have judicial powers, as a magistrate in transition, until a functioning judiciary could be established. The cardinal principles at the frontline of the administration were to be integration with the population and maintenance of a presence through district visits. The emotional support of the people would buy the UN more time and tolerance for the late arrival of material development. The DA needed to be a certain kind of person that could not be identified by the boxes on a UN personnel form or the level of a UN grade. The required characteristics included, not so much age as personal maturity, sincerity, a sense of protectiveness and empathy with the pervasive psychology of trauma. The last thing that would be needed would be to appoint uncreative bureaucrats who would instead preserve the status quo – the conditions on arrival would be desperate or abusive, and they had to be changed. Dynamism and initiative also meant minimal reliance on headquarters in the capital city, which would at best provide limited kinds of support. Subordinated to the DA were all of UNTAET’s elements in the district, with the strict exception of the military, which remained unquestionably under the control of the Force Commander in Dili. The DA’s line authority over all civilian officials in the area was readily accepted in New York. In addition to the UN civilian police, the DA had charge of a team of civil/political, humanitarian, human rights and legal/judicial affairs officers. A Deputy DA had responsibility for public services and agricultural affairs officers. This rather awkward division with the Deputy was aimed at getting fiscal authority delegated to the district level, to render decentralization

Building state failure in East Timor 151 real and capable of making a material difference. In Kosovo, the terms of reference for the reconstruction Trust Fund permitted discretionary expenditures of up to US$50,000 for quick impact projects. However, the regional administrators felt that they could not access central decision-making in Pristina quickly or efficiently enough. For East Timor, it was possible to delegate fiscal authority to the districts if the spending limits were lowered and the UN Controller could be satisfied that someone with budgetary competence was deployed at that level, as a control mechanism. Budgetary authority was given to the Deputy DA, whose seniority would create confidence in the Controller, but one of the public service officers would most likely have budgetary experience. To avoid delaying their acceptance, delegation of fiscal authority to the districts was not explicitly referred to in the final terms of reference for the UN’s East Timor Trust Fund. The language of the draft was intended to allow for delegation, but this was not enough: appreciation of these planning details was discarded in the field and decision-making was re-centralized, greatly frustrating the DAs who felt that all they could do was to hold meetings.

Re-centralization In November 1999, Timorese debated whether there should continue to be thirteen districts in the country. Several plans emerged for reducing the number and redrawing the boundaries. However, UNTAET – as a new administration – needed to build as much as possible on what already existed, and then transform it over time. The UN was not in a position to reinvent too much too soon, otherwise it would disassemble something that it could not replace. In the meantime, a World Bank Joint Assessment Mission (JAM) identified regional hubs for concentrating the bulk of the civil service, to minimize an unaffordable number of bureaucrats at the national and district levels. The time to change the boundaries was, perhaps, at the time of an election, when the population could be registered according to newly determined centres. UNTAET should have been tackling substantive matters like this one; instead, individuals were preoccupied with centralization under their personal control. The dispatch of UN personnel was a particularly acute problem. It had been delayed for more than a month, narrowing dangerously the window of opportunity for success on the ground and alienating the Timorese resistance. The chief of personnel in the Department of Peace-Keeping Operations had refused to

152 Jarat Chopra approve any new contracts as part of his own bureaucratic territorial battle. When new staff did finally arrive, they were retained in Dili to increase the influence of the Transitional Administrator’s inner circle. As late as January 2000, the capital boasted 174 professional-level staff, while across the thirteen districts, only seventeen officials had been deployed. Further compounding the resulting difficulties, at the end of November 1999, some twenty-five of the thirty-seven remaining UNAMET staff had resigned or refused to renew their contracts. They felt denigrated by the leadership of the new mission and had been blamed privately for the earlier violence. During the planning of UNTAET, it had been feared that an office with only a DA and few staff would be too small to handle the demands of a district area as a whole. An additional layer of UN administrators was argued for, but rejected on budgetary grounds. In the field, however, up to 200 UN Volunteers (UNV) were available for reassignment after having conducted the August vote. They were designated as District Field Officers (DFO), two to be deployed in each of the sixty-three sub-districts. They would not have the executive powers of the district level. Rather, they would link into the World Bank CEP that was establishing local Timorese administration upwards from the hamlets to the villages and subdistricts. Ideally, the DFOs could maintain a presence and further personalize UNTAET in the intimacy of the sub-district setting. In the absence of professional staff in the district offices, however, most of the DFOs were redirected and absorbed, filling the gaps under isolated DAs. In the wake of East Timor’s destruction, UNAMET staff had enterprisingly established ‘reconstruction committees’ in some of the population centres. This was coincidentally in keeping with the original concept of operations, which envisioned functional ‘task committees’ composed of relevant actors in the district, whether UN, non-governmental or Timorese. An attempt was made to integrate the existing committees into the new UNTAET district structure. The outcome would have preserved continuity in appearance, institutional memory and ground knowledge from one UN mission to another. It could also have been a means of creating an active nucleus around which to build district administration in the absence of personnel, and generate momentum in the process and confidence amongst Timorese. Instead, this delicate transformation was purposely fractured to give primacy to nascent ministries in Dili – or more precisely, to further increase the personal influence of the centrists.

Building state failure in East Timor 153 Similarly, the subordination of civilian elements to the DA was unravelled with independent chains of command reasserting themselves from the capital. The civilian police were the first. With many officers having come from UNAMET, a direct line to the Police Commissioner in Dili already existed. Awaiting the appointment of the DA, UNVs had often assumed the mantle of the position. Seasoned police officers refused to submit themselves to a younger Volunteer, however bright and capable. More seriously, the police misinterpreted their mandate as one of assistance in, as opposed to the actual enforcement of law and order. They therefore failed to appreciate the political significance of helping the DA, once in place, to perform temporary judicial functions. There was even more bitter tension with those in charge of humanitarian affairs over control of their district counterparts. As some at the centre attempted to exert more and more control over district functions, specialist positions atrophied or, paradoxically, the centre lost control of the DA. In one case, a DA redesigned the district organigram, and within it the various lines of responsibility. Unopposed by the self-interested, who were therefore disinterested in such substance, this undermined the critical requirement of uniformity of administration across all districts; for it was the guarantee of consistency that permitted the delegation of authority to a local level in the first place. The Timorese rejected some DAs as inexperienced, while others were lauded for learning Tetum. Worse still was the bottleneck of resources in Dili, not just in terms of Land Rovers and modern equipment like computers – some DAs were lucky to have tables and chairs. The opulence of the UN in the capital was detested; and with destitution in the districts, it was difficult to command respect. The last two weeks of November 1999 were the opportunity for UNTAET to succeed. That was the moment to capture the emotional support of the population before reconstruction funds had arrived and the mission fully deployed. With the presence of the International Force, the remainder of UNAMET civil affairs officers, and the newly arriving UNTAET staff, sufficient human resources were available to personalize from the beginning the most complete transitional administration of its kind. This required the delegation of authority, which the mission had been designed to enable; methodical ‘Timorization’ then had to start and be sustained through commitment to the building of popular capacity and a visionary campaign plan with a timetable for the transfer of power. Instead, there were personal agendas. Re-centralization in the field resulted in the exclusion of Timorese from the transitional administration as a

154 Jarat Chopra whole, an explosive question that then overshadowed the specifics of effective district administration.

Popular representation In peace operations and the parallel humanitarian and development enterprises throughout the last decade, accountability has been divided and directed upwards, to the headquarters of international organizations and financial institutions, to their authorizing bodies, to individual donor governments, to the national capitals of troopcontributing nations and to the private funders and boards of directors of non-governmental organizations. At best, accountability has amounted to a complex web of lines controlling different operational centres of gravity; it has had painfully little to do with substantive performance and the reasonable accomplishment of tasks mandated for missions. The careers of international staff are determined in power centres far from the reality of an area of operation. The idea of international accountability has not matured democratically, for it has not been subjected downwards to the will of a local population as a constituency. Just as international personnel are immune from domestic prosecution, so too the people of a territory do not participate in deciding on the nature of international actions. Nor are they in a position to demand transparency from or to ensure effectiveness of those who intervene. In this context, politically-driven and blunt declarations of ‘success’ are readily made, regardless of the actual – often dismal – results. The problem of accountability has been most acute with the advent of transitional administration. During the planning phase of UNTAET, the Timorese resistance was not meaningfully consulted. A staffing table was created for UN personnel that did not make provision for Timorese integration in it. Proposals from the Timorese regarding their role during the transitional period were ignored. The organizational chart for UNTAET obliquely indicated some kind of Timorese consultative bodies at the national and district levels, but purposely did not specify what they might be. When the new Transitional Administrator reached Dili, he immediately began a direct dialogue with Gusmao, but then relied on this relationship almost exclusively instead of leading effectively himself. It did not work.7 The design of the mission had failed to account for a separation of powers and genuine accountability to the population it would have to govern. What kind of community empowerment can provide a means for local participation in state building exercises?

Building state failure in East Timor 155

Consultative councils At the national level, the structure and composition of a National Consultative Council (NCC) were negotiated between UNTAET and the Timorese resistance in late November 1999. The NCC included a fixed number of representatives from both pro-independence and prointegration groups, although the latter were not really part of the political landscape any longer and were located in West Timor. The significant complications of security and their personal safety meant that they did not really participate in the NCC. Much to the dissatisfaction of other elements in Timorese society, UNTAET had accepted that no new political parties would be admitted to the NCC – giving exclusivity to the voice of the CNRT. This had been accepted in a spirit of conciliation – and frankly without any careful thinking behind it – but partly also because the negotiated formula included representatives of women’s groups, youth organizations, traditional leaders and others. Somehow, these categories were discarded in the finalization of the terms of the NCC between the Transitional Administrator and Gusmao, on the pretext that lower numbers would make for a more workable body. Months later, popular opposition reached a point that forced expansion of the NCC, and it was transformed into a larger National Council (NC). Neither the NCC nor the NC had legislative powers – these were strictly in the personal hands of the chair, the Transitional Administrator. Similarly, at the district level, it was expected that the District Administrator would chair a district council (later a District Advisory Council, DAC). The details of these bodies should have been negotiated and finalized at the same time the NCC was established. However, time pressure and other issues demanding attention delayed any conclusion regarding the district-level councils. This was a fatal error, given the disassembling of district administration that would follow and the protracted tensions preventing the delegation of authority from the centre. Half a year passed before any moves were made to establish DACs. In the districts, it was unrealistic to include some kind of pro-integrationist representation. It would not have been accepted in the villages and so its role would have been quite irrelevant. Representatives of women, youth and chiefs most likely would have come directly from the Timorese resistance, raising concerns about independent voices. In the end, the convening of councils varied from district to district and their role depended on the effectiveness of individual District Administrators; for the most part, Timorese activity at that level was simply located elsewhere.

156 Jarat Chopra

Top-down authority The approach to establishing councils in East Timor at different levels of administration had been conditioned by the UN’s experiences in utterly fragmented environments such as Somalia. Under conditions of anarchy, it made sense for an international mission to reach out at the national and local levels to establish new political centres of gravity. The aim was to out-manoeuvre fighting warlords and establish some alternative activity. To guard against councils being hijacked by a recalcitrant faction, it was logical to avoid an independently direct connection between the national and local councils. Once a new government was formed, reliance on the hierarchical structure of the mission could be replaced. East Timor was not Somalia, however. A defined backbone within the Timorese resistance structure already connected all levels in the country more effectively and pervasively than a small number of UNTAET staff would ever manage to do. The national and district councils were not going to – and did not need to – undermine this relative organizational coherence. Instead, precisely to counter UN officials who were actively recentralizing district administration, and thereby attempting to control all aspects of Timorese participation, a provision was deftly included in the DAC formula. The purpose of it, as it turned out, was not detected. Quite simply, the DAC would report directly to the NCC in a principally Timorese chain of command, thus attempting to minimize the UN centrists’ control through the District Administrator of the local communities represented in the council. Ultimately, the relevance of this subtlety was overtaken by the establishment of the East Timor Transitional Administration (ETTA). Another part of the original logic of the councils was that they should be appointed rather than elected. This was to be a provisional arrangement, necessary because (it was felt) the establishment of popular representative bodies would take a year and so could not be created quickly enough to be of use during the transitional period. The premise that selected Timorese had to be appointed, however, was mistaken. In fact, it was quickly apparent that some kind of imperfectly elected bodies, which were adequate for the transitional period, could be formed in the space of weeks. The real barrier to elected bodies turned out not to be their achievability, but rather stinging opposition from UN bureaucrats within a centralized organizational hierarchy. They stated openly that since UNTAET was not a representative government, it could not tolerate other bodies in the country being more representative.

Building state failure in East Timor 157

Community empowerment The drama of opposing forces of centralization and decentralization unfolded during the negotiations for the World Bank CEP. Cosponsored by the Asian Development Bank (ADB), the project was intended to facilitate the establishment of village and sub-district councils composed of equal numbers of men and women, elected from hamlets and the new village councils, respectively. Block grants would be provided directly to each sub-district, which would then decide development priorities based on proposals submitted by the villages. This experiment was to be an elegant introduction to local democracy as well as a pure form of self-determination in reconstruction. Indeed, the project deliberately aimed to reverse the historical tendency of accountability upwards; each layer of administration, rather than receiving instructions from higher authorities, would now be accountable downwards to a popular constituency. The process would be fraught with difficulties, no doubt.8 Structurally, nevertheless, the CEP fitted neatly with the essentially decentralized scheme of district administration. Cynically, it could have been regarded as a form of ‘indirect rule’ by understaffed district offices, which would be organized and paid for by the World Bank but for which the UN would get full credit. In fact, it became the battleground for a Timorese role in the exercise of power. UNTAET bitterly opposed the project and attempted at all costs to stop it. The centrists rejected the CEP twice, along with the US$35 million available at a time when no other funds had arrived from the international community. Only the political configuration of back-to-back visits by Kofi Annan and World Bank President James D. Wolfensohn forced a signature. UN officials realized that the logic of the project dictated that they would control neither the expenditure of the funds nor the councils to be established. They made extraordinary arguments to the World Bank and the Timorese resistance. Their shotgun positions included the following: the UN could not approve gender equality; international staff needed to dictate community empowerment; the election of local officials would confuse the Timorese with national elections; and the entire exercise had to be conducted in a legal vacuum since UNTAET did not want national legislation governing local administration. Each of these arguments was a deal-breaker for the World Bank, and was rejected as a condition of the grant. Ultimately, the UN refused to accept local elections. An accommodation was eventually reached in which the World Bank would in fact conduct local elections, and present them to the

158 Jarat Chopra population as such, but UNTAET Regulation 2000/13 passed for the purpose would use the words ‘democratic selection’. Given the speed with which elected village and sub-district councils were established, it would have been conceivable – if politically impossible – to extend the process higher upwards. The ADB pushed for elected district councils to be formed from the sub-district councils in the same manner in which they were formed from the village councils. In the negotiations for the CEP, the World Bank was willing to concede to UNTAET on this point in exchange for preserving the integrity of the rest of the project. It would have been further conceivable – though it was never raised in view of what would certainly have been strong UN opposition – to establish an elected national council drawing on the districts. These kinds of informal elections are not comparable to a single national election preceded by a registration of voters. But a participatory process can get moving quickly through shows of hands or discreetly marked slips of paper over a number of mornings, and this could infuse an intervention with some kind of popular representation from bottom to top. The CEP was unable to recover from the acrimonious negotiations leading up to its establishment. It continued to be effectively rejected by UNTAET internally, with the consequence that the transitional administration never had much of a presence below the district level, where 80 per cent of the population lives.9 The UN failed to create any kind of local government and lost the opportunity for introducing democratization alongside existing hierarchical paradigms. Instead, villages reverted to traditional power structures, which were manipulated – well below the radar screens of international observers – to achieve an overwhelming result in the Constituent Assembly elections of August 2001.10 Thereafter, a single individual, Mari Alkatiri (to whom the Transitional Administrator now turned his attention, away from Gusmiio), from a single party, Fretilin, was poised to control from the capital all aspects of legislative and executive life in the country, inevitably spawning opposition and divisiveness. The Timorese had been largely patient with the slow pace of fulfillment of the mission’s original mandate. They then discovered that the UN had prepared a plan for departure after the election. Predictably, the election which had not been the mission’s objective – became its exit strategy. Out of frustration, and with the backing of political, religious, traditional and other leaders at the highest levels, Lucas da Costa, the Rector of the Higher Institute for Economics and Management, addressed a letter to UNTAET that he requested be

Building state failure in East Timor 159 forwarded to the Secretary-General. In it, he challenged the UN’s claim of mission success based on a peaceful election. That result, he charged, had been brought about by the discipline of the Timorese people and was not evidence of a functioning rule of law and order. Da Costa called for a reliably accountable international assessment to be conducted of the gap between UNTAET’s original mandate and the persisting debris of a nation unbuilt, the ruins of which the Timorese would inherit while the UN presented itself externally as successful. Such an outcome, da Costa argued, would be a breach of an international promise to the Timorese people. They had entered into a social contract with the UN, openly accepting it on the condition that it fulfilled the bargain in good faith. Only by measuring the current status of the initial blueprint for international action in East Timor (from the Secretary-General, Security Council and World Bank) could a demand be articulated for what the UN needed to do before it left. To ensure that the assessment would be truly transparent, there was a further call for the removal of the Transitional Administrator. Insulted, de Mello punished da Costa by rejecting his candidacy for a cabinet post in the new government. The incident reflected an environment that prohibited dissent and opposition, conventionally the hallmarks of a democratic culture and the basis for meaningful accountability.

Conclusion: participatory intervention In light of events in East Timor, it is an open question whether we should continue to seek to improve doctrinal concepts for international interventions to (re)build states. After the escalation of peacemaintenance to the governorship category, there cannot be another degree of intrusiveness or increased scope of activity. The evolution of peace operations doctrine has reached a final point, perhaps a dead-end. Indeed, throughout the 1990s, theoretical breakthroughs were made consistently, refining what to do and how to do it, but the results have been poor or disastrous, particularly in comparison with the underlying assumptions and purposes of the intervention and the original articulation of mandates. What is certain at this stage is that – if there is to be a way forward – local populations require much fuller and more genuine integration in the variety of international interventions. The need for a concept of ‘participatory intervention’ constitutes, then, the next puzzle to solve. Strikingly, the prevention of success has been largely the work of individuals, both international and national civil servants. Institutions

160 Jarat Chopra are not anonymous nor are the causes of operational mismanagement depersonalized, structural and inevitable. In the area of international criminal law, it has been acknowledged since Nuremberg that the individual official is responsible, separately from the body corporate of the organization. It must follow that within international organizations, to paraphrase: duties and liabilities are imposed upon individuals because international activities are conducted by them, and not abstract entities, and only by holding them responsible can there be accountability. Meanwhile, on the ground, the situation seems to evolve by itself, regardless of the type of international intervention in its midst. Superficiality is the result of mandates vast in scope implemented by missions minimal in capacity and deployments of relatively short duration, with six-month personnel contracts among a population who are there for good. The shallow resolve of international officials, either from disinterest or self-interest, cannot confront resistance or liberation movements or warlords and factions playing to win. Operational planners fail to comprehend the degree of social engineering necessary to achieve the mandate, and either prepare for and tackle it, or decide that it is impossible under the circumstances and resort to development assistance over a much longer time period. In this manner, missions like UNTAET can render themselves irrelevant, as the country comes back to life by itself without much physical reconstruction. The self-evolving balance of power replaces the minimal and weak state structures left behind, and the political process plays itself out exactly as it would have done without a transitional administration. Equally, such missions can contribute to outcomes more negative than if they had not intervened at all. They may undermine indigenous forms of political legitimacy without establishing a reliable alternative and functioning administrative structure. They have often facilitated the strongest player in taking the capital city. It was a habit of UN deployments in the past to follow on the ground the line of least resistance, unable therefore to challenge recalcitrant warlords, or to prevent the largest factions from dictating terms of a peace process. This is why Hun Sen’s State of Cambodia, that lost the 1993 elections, never gave up power. This is also why the Northern Alliance dominated the Bonn conference on Afghanistan in November 2001. Between these two events, it had been the aim of transitional administration to overcome the phenomenon of might-as-right, by taking control of power dynamics altogether and then transforming the political process and achieving an outcome that was different, in some

Building state failure in East Timor 161 way better, than what would have happened by itself. Instead, in East Timor, the UN legitimated the party that had managed to extend its control the furthest into the districts as the successor to the UN’s absolutist form of kingship.11 All of these factors contribute to the next round of state failure in East Timor. The greatest reliance is now on the discipline of party leaders, village chiefs and ordinary people not to express their differences through violence. There will need to be good governance through good intentions in the absence of much of a functioning state – including a rule of law and pacific means of dispute settlement – and it is difficult for good intentions to survive the pursuit of power at any level of whatever form. It is even more difficult to be disciplined without a means of addressing past injustices, due to recent militia violence or earlier civil war, and with the option of vigilante justice as a last resort. This outcome leads to the question of whether or not there should ever have been a UN transitional administration in East Timor. What if the World Bank, as organized as its team was at the outset in this case, had entered into a direct relationship with the CNRT? It is a scenario worth replaying to assess the results of UNTAET. For the UN claims success based on the fact that there was an orderly election in 2001 – or rather, that there are no bodies piling up and that there is someone to whom to transfer the mantle of authority. But neither the absence of short-term violence nor the election were the point of a transitional administration. These aims could have been achieved with a peacekeeping force and another voting exercise like UNAMET – a transitional administration was not necessary if these are the measures of success. The purpose was to rebuild the country and to take control politically to break with the past. UNTAET did not take control in real political terms, however, and any kind of transfer of authority has been to a party that took power by itself during the transition, replicating precisely what international administrations had been invented to solve. There had been desperate attempts in the early months of UNTAET amongst its staff, in the capital and in the districts, to convince the mission leadership to confront the question of internal political dynamics. There were differing views. A very few felt that the CNRT should be broken up as soon as possible. Anyone who had been in Somalia was horrified by the thought of the loss of a single interlocutor and its fragmentation into disparate, perpetually shifting factions. The World Bank also strongly opposed this idea. At the other extreme were those who believed there should be recognition of the CNRT as the de facto local

162 Jarat Chopra authority, an argument made more possible with the essential absence of pro-integrationist forces in the political arena. Yet it was hindered by the underlying assumption from New York that the August 1999 vote was for independence, not for the CNRT as the government. As the old Namibia hands stated in meetings, unlike SWAPO’s recognition in 1973, they did not consider the CNRT as ‘the sole authentic and legitimate representative of the Timorese people’. Consequently, another position held that elections should be conducted at the beginning of the mission, and not in the middle or at the end. Still others somehow thought the issue and the CNRT itself could be ignored, just as the Timorese could be excluded. Major-General Peter Cosgrove, the Australian commander of INTERFET, approached the question in pragmatic terms. The CNRT was the only identifiably coherent entity on the ground. It made sense to deal with them as necessary, without concern for the formalities. In the absence of instructions from the UNTAET leadership, this is also how officers in the districts and in Dili dealt with the CNRT. It was a functional relationship without any kind of formal recognition. It was also one way of managing the issue day-to-day. But it defied the logic of a transitional administration that had been the result of a certain history, encapsulated in the planning of its design, and which intended to manage directly the local political process. It was contradictory to be the government of a country and to remain aloof from the politics of the people. It is difficult to determine what an international transitional administration should do to manage internal political dynamics. In social and political engineering terms, one option is to decide that the task is impossible, while another is to map out the complexity of the task and formulate a strategy to achieve it. An honest assessment would have indicated the degree of pervasiveness of the CNRT structure in every corner of the country. How could this be discarded, while at the same time the Transitional Administrator relied on his relationship with the CNRT head? Typically, there was UN disinterest in what happened outside Dili. To determine a relationship with that structure which would be comprehensive, intimate and uniform, but adaptable as necessary, would probably always be beyond the capacity of most UN generalists selected in the manner that they are. Part of the problem also had to do with a binary view in the UN system: either there is a sovereign government for the UN to relate to as a national institution, or else there is an illegitimate faction fighting on the ground. The CNRT was neither of these. It was much more than merely a faction and to reduce it to that status would be folly.

Building state failure in East Timor 163 It was an umbrella organization for all resistance groups. As such, there were deep divisions within it. That is what ought to have been of concern, the issue to be addressed. There should have been political analysis of the internal dynamics of the CNRT, based on deep knowledge of local politics, discussion and a decision about what to do. No such process developed, however, and some of the explanation is surely sub-cultural. Not only was the Transitional Administrator not expecting to stay long, and therefore did not invest in engagement of complicated matters, but his background as an international bureaucrat was rooted in a diplomatic context. It is the diplomatic habit to remain removed from local politics and not to participate in the social process behind it. The problem was precisely that the head of the government and the pre-constitutional king of the state, or the proconsul of the territory, was not functioning like a politician in contact with the population and their various interests. He was speaking almost exclusively, in an asocial and diplomatic fashion, to a single individual. As important a figure as Gusmao was, the requirements of leadership were far more complex and demanding than a single relationship could provide. Comparably, the Deputy Special Representative of the UN Secretary-General who was responsible for the Governance and Public Administration pillar of the mission – or properly, the government apparatus of the country – was a professional administrator from France. His career had been as a provincial prefet, which is the position of a generic civil administrator distinct from the politician of the area. It is the idea of purely functional administration divorced from the political fray. In the context of an intervention during a transition, however, every act in whatever arena (military, humanitarian or developmental) has profoundly political proportions and incurs implications that do not fit within generic administration. Thus, the transitional administration was being implemented as if a political vacuum existed – an extension of the sense of a state vacuum that had first rationalized the intervention. This approach of state building asocially and apolitically contributed to the local reality that evolved by itself. The UN backed into the ETTA arrangement awkwardly. Fretilin, the largest organized party, left the CNRT at its Congress in August 2000, and continued a process of consolidation of influence at local levels. The CNRT finally dissolved itself at the last minute in June 2001, weeks short of the August Constituent Assembly elections, in which political parties had to be formed, campaigns conducted and the balloting prepared for with very little time for organization. Civic education for democracy had started not long

164 Jarat Chopra before that, with predictably minimal results. There was a rush towards an end-state, relying on the familiar coping mechanism of UN missions: hold an election and withdraw from and abandon the territory. By the autumn of 2001, the priority of UNTAET was its short-term image, rather than long-term concrete results on the ground. The future constitution would be more the result of socialization than consultation, as the winning party presented its draft. This was in lieu of fulfilling the point of a transitional administration to fundamentally transform a political environment through social engagement. The Transitional Administrator had always been more concerned with international, strategic-level politics, in the capital cities of the UN member states and donor governments. They were the real constituency, and the source of power and the determinant of his future, more than of the Timorese people. If this kind of social alienation was true of the leadership, it was also true of the whole state building enterprise that skidded on the surface of the country, and that did not penetrate the sub-districts and villages or make a positive difference in the daily lives of individuals. On the eve of the Constituent Assembly elections, UNTAET published its twenty-one greatest achievements in the September issue of its own broadsheet, Timor Tais, for the benefit of international press and observers there for a quick visit. Afterwards, the student group RENETIL rejected the list as blunt propaganda and, in what they termed ‘A Popular Challenge to UNTAET’s Achievements’, exposed the veracity of each item on it, arguing that either UNTAET had been forced, by the Timorese people or international critics, into many of what it now counted as achievements, or it misrepresented its claims altogether. The UN was painting its story as a success to justify its investment during the transitional period, they said. At a press conference on 14 September, RENETIL declared: ‘East Timor will be left by the United Nations in a much poorer state than what the international community had promised the country in its mandate. It is time for a popular dialogue on the ineffectiveness of the governing authority’. Indeed, on 20 May 2002, East Timor achieved its full independence and became the newest state of the twenty-first century. The UN Development Program published its human development index for ‘the poorest country in Asia’, with indicators comparable to the most severely collapsed places in the world.12 In statistical terms, UNTAET had given birth to a failed state. After East Timor, if there is to be any future for peace operations that are both legitimate and effective, then a much more participatory form of intervention has to be considered. The idea of ‘participatory

Building state failure in East Timor 165 intervention’ stands in contrast to the practice in state-(re)building processes of relying on only international appointees or elites selfappointed as representatives of the people. Instead, the aim would be to include direct involvement of the local population from the very beginning of an international intervention, in order to ensure justice for the parts and that new governing structures resonate with local social reality. Participation has become a minimum standard and a moral imperative. It might also overcome some of the difficulties of state building or force acknowledgement that at least the UN cannot do it. Concretely, more genuine forms of ‘democracy’ may be possible through CEP-type elections, from bottom up through to national levels, which are imperfect but adequate for transitional purposes. Having some meaningful effect will require, in the operational planning phase, valuable anthropological information to understand local social structures, as well as the deepest possible political analysis of all the actors in the deployment environment. Certainly, there needs to be an accurate assessment of the scale of the social and political engineering project, and either seriousness of purpose about achieving it or realizing its unfeasibility. Although, the reality is that, whether the international community proves timid about it or not, whoever takes power will conduct that project for his own purposes, and possibly in brutal ways.

Notes 1 Adibe, C.E., ‘Accepting External Authority in Peace-Maintenance’, in J. Chopra (ed.) The Politics of Peace-Maintenance, Boulder, CO: Lynne Rienner Publishers, 1998, pp. 107–22; Hohe, T. ‘The Clash of Paradigms: International Administration and Local Political Legitimacy in East Timor’, Contemporary Southeast Asia, vol. 24, no. 3, 2002, pp. 569–89. 2 Mackinlay, J. and J. Chopra, A Draft Concept of Second Generation Multinational Operations, Providence, RI: Thomas J. Watson Jr. Institute for International Studies, 1993. 3 Chopra, J., Peace-Maintenance: The Evolution of International Political Authority, London: Routledge, 1999. 4 Ibid., pp. 11–12. 5 Hohe, T., ‘Totem Polls: Indigenous Concepts and “Free and Fair Elections” in East Timor’, International Peacekeeping, vol. 9, no. 4, 2002, pp. 69–88. 6 Rees, E., ‘Security-sector Reform and Transitional Administrations’, Conflict, Security and Development, vol. 2, no. 1, 2002, pp. 151–6. 7 Beauvais, J.C., ‘Benevolent Despotism: A Critique of UN State- Building in East Timor’, New York University Journal of International Law and Politics, vol. 33, no. 4, 2001, 1101–78; Chopra, J., ‘The UN’s Kingdom of East Timor’, Survival, vol. 42, no. 3, 2000, pp. 27–39; Gorjiio, P., ‘The Legacy and Lessons of the United Nations Transitional Administration in

166 Jarat Chopra

8 9 10 11 12

East Timor’, Contemporary Southeast Asia, vol. 24, no. 2, 2002, pp. 313–36. Ospina, S. and T. Rohe, ‘Traditional Power Structures and the Community Empowerment and Local Governance Project: Final Report’, Dili: World Bank, 2001. Hohe, T., ‘The Clash of Paradigms: International Administration and Local Political Legitimacy in East Timor’, Contemporary Southeast Asia, vol. 24, no. 3, 2002, pp. 569–89. Hohe, T., ‘Totem Polls: Indigenous Concepts and “Free and Fair Elections” in East Timor’, International Peacekeeping, vol. 9, no. 4, 2002, pp. 69–88. Ibid. United Nations Development Programme, The Way Ahead: East Timor Human Development Report 2002. Dili: UNDP 2002, available online www.undp.east-timor.org

9

In praise of folly International administration and the corruption of humanity William Bain

Introduction The purpose of this chapter is to interrogate the vocabulary of international administration with a view to illuminating a particular normative dilemma that arises in consequence of internationally led exercises in state-building. However, before proceeding any further, I wish to clarify the way in which I mean to use the word ‘normative’ and the type of thought it implies. This chapter is not concerned with explaining particular norms, either in terms of what they ‘do’ or in terms of how they are in fact diffused and internalised. Norms do nothing of their own accord: men and women subscribe to norms, adequately or inadequately, in conducting their relations with other human beings.1 Similarly, this chapter is no more concerned with the formulation of policy, the coherence of which is validated by its correspondence with the precepts of a favoured theory. The engagement of normative thinking affords no place to the enthusiasm of advocacy masquerading as scholarship. Indeed, policy erected on nothing but the shifting sands of desirability, while useful in satisfying the demands of ideology or soothing the call of our conscience, tells us precious little about the conditions of right conduct in international life. In other words, normative thinking is concerned with evaluating the propriety of human conduct and the utterance in which it is intelligible. This chapter addresses itself to a dilemma that is emblematic of international administration, namely, its embrace of conduct and utterance that proposes to vindicate the value of fundamental rights and freedoms by suspending, albeit temporarily, an important part of its content: the principle that human beings should not be subject to coercion except where they have given their consent. My aim is to illuminate the character of this dilemma. By that I mean: I want

168 William Bain to interpret the contours of the dilemma, that is, the rights and wrongs that give it context and meaning, with a view to discerning the normative significance it imparts. The chapter will proceed by arguing that the larger proportion of the international administration literature is beset by a rationalist disposition which, for all the fretting about issues of accountability, ownership and democracy, is manifestly ill-suited to engaging or expressing the normative conditions implied by these concerns. It will then move on to compare the assumptions and expectations of a relation of contact and a relation of trust in order to tease out the normative incoherence of the category ‘international administration’. The chapter will conclude by arguing that in collapsing the distinction between these two modes of human relation the activity of international administration debases our political and moral vocabulary in such a way that it corrupts all that it touches.

The idiom of technique One of the principal difficulties in making sense of what international administration is meant to convey stems from the fact that it is regularly invoked to name at least two distinct modes of relation which, considered separately, presuppose different assumptions, different expectations and, most important of all, different obligations. This conceptual confusion is fitting testimony to a vocabulary that portrays international administration as something to be managed, and where the results are less than optimal to be managed better than it is at present. The voice of international administration is most clearly audible in an idiom of technique in the service of effectiveness, whereby the most crucial questions of the day probe the ability of various actors, the design of particular institutions and the method of coordinating international action. Excluded from this idiom of conversation are the rights and wrongs of international administration; they are merely assumed, having been stipulated as a priori truths that are placed safely beyond the searching eye of moral scrutiny. Normative vocabulary, those words that are specially intelligible in the ‘shoulds’ and ‘oughts’ of human speech, is reduced to an instrumental consideration so that the ‘good’ and the ‘right’ are that which correspond with the achievement of these premeditated truths; and the colour and texture of social life, the contingent part of human relations that so frustrates the calculative will, is summarily bent (or ignored if necessary) to the needs of achieving a particular objective. Indeed, the world of international administration is that of an architect

In praise of folly 169 who is conversant in the formulae of structural engineering but who is ignorant of, or unconcerned with, the standards of taste with reference to which architecture is said to be beautiful or ugly. But it must be conceded that obliterating the distinction between technique and art affords its own peculiar advantages, not the least of which is a freedom of action that is unencumbered by the heavy hand of custom and the distillation of wisdom it conveys. Human activity is then made both simple and certain; it is susceptible to precise formulation, which renders the necessary ambiguity that goes with all interpretation a transitory nuisance that can be ‘thought away’ by consulting a premeditated principle and by supplying the skill required to realise it. A loss in experience is a gain in efficiency as questions give way to problems and answers give way to solutions, which are both joined by a straight and unbroken line that ensures a measure of coherence and, crucially, a unity of purpose that stays the course in the pursuit for useful knowledge. And once this course is set all proximate problems fall neatly into place as the inconvenience of conceptual and, indeed, moral conflict no longer merits sustained attention: to say that a building is structurally sound is to say that it is sublime as well. It is precisely this manner of thinking that divests the category international administration of much of its substantive content. Instead, it takes the shape of an ungainly descriptive metaphor, one part reluctant empire and two parts post-Westphalian international governance, which cuts a lamentably ragged analytical edge. For the chief difficulty posed by the conventional meaning of international administration is that it discloses no conventional meaning apart from providing a common point of reference for a menagerie of very loosely related international engagements in domestic governance. In asking too much of the category international administration its several patrons are often caught between wanting to pronounce on normative questions and being deprived of the means to do so. Addressing a normative question usually begins with posing such a question. Some of the most important normative questions include: ‘who shall rule and by what authority?’; ‘to what ends shall the activity of government be ordered?’; ‘must the magistrate always be obeyed?’ But instead of making such questions the starting point of the scholarly enterprise, it seems as if the preferred point of departure consists of positing international administration as a remedy to state failure and the ghastly consequences that go with it. Normative questions arise only after the desirability of international administration has been already established. Thus, questions pertaining to the

170 William Bain legitimacy of international administration, to give but one example, are conceived as interim problems that must be surmounted in much the same way that an absence of political will is conceived, not as an injunction that something should not be done, but as an obstacle around which scholar and practitioner must navigate. So if unilateral action leaves some members of international society feeling queasy about what American neo-conservatives trumpet as the unashamed exercise of power for the sake of good, better to seek the multilateral blessing of the Security Council and, to shore up its limitations, redefine sovereignty so that it implies responsibility.2 But missing from this exercise of ‘legitimation’ is the possibility that in some circumstances international administration might itself be morally objectionable; for it seems as if international administration must be good because it is instituted for the sake of good ends. The appeal of this approach must be appreciated to the extent that it relieves the instrumental mind of having to provide a moral account of international administration that does not involve harnessing it to an abstractly postulated end that is simply said to be good. We might all agree that freedom is a good thing and that rights instituted to preserve freedom are good things too; however, we are not then in a position to say that states are good things because they are in principle ordered to the preservation of freedom through the institution of rights. Relating abstract means to the achievement of abstract ends brings instrumental clarity only at the cost of incurring normative absurdity. Advocates of international administration commit a similar mistake when they abstract from the peculiar characters of particular cases in order to bring an improbably diverse group of engagements under a single heading. This does not mean that comparison is impossible: international involvement in Bosnia-Herzegovina and Kosovo may disclose certain similarities that are worth comparing. It may be of interest that the promotion of human rights and fundamental freedoms are to be counted among the aims of both missions; so too might the considerable range of administrative functions undertaken by various international organisations. Conversely, it may be the contrasts that are of especial importance: East Timor’s status as a (former) non-self-governing territory marks it off from very similar operations in the Balkans. But amassing a large collection of facts, some of which call attention to similarities and others to differences, leaves us with a large collection of facts in the same way that the sum of a large collection of zeros is still zero.3 The rich mass of facts that have been dumped into the category international administration have been made to yield an impressive

In praise of folly 171 range of advice – indeed, the instrumental mind is no stranger to diversity of approach. A willingness to change course when confronted with chance and contingency, the stuff of human relations that cannot be eradicated by abstract truth, holds out the surest hope of rescuing the instrumental mind from the world. For what is reliably certain in matters of approach is the constancy of its form: a postulated mean is pressed into the service of a postulated purpose in advance of setting off on the adventure that is the world of human conduct. It is then possible to whisper into the ear of the prince that the most effective international administration is the one which organises elections, convenes constitutional conventions and empowers utility-maximising man through the operation of markets. Of course, when the wry grin of chance makes that advice look foolish there is a pressing need for fresh advice: perhaps the most effective international administration is the one which firmly grasps the ring while encouraging the wholesome effects of functioning institutions to take hold. The key to it all, at least so it seems, is to get sequence of steps right.4 We would also want to alert the prince to the importance of ‘external forces’ in establishing an effective international administration; that the creation of vibrant markets and functioning institutions depends also on the involvement of the most important and, indeed, powerful international actors. The advice here is to align the interests of ‘locals’ and ‘internationals’ to the greatest extent possible.5 And, finally, the prince should be made to understand that the continuing success of international administration depends crucially on the identification of factors which point the way to future success: favourable objective conditions are better than unfavourable conditions, clarity in operational aims is better than ambiguity and more authority is better than less than is required to do the job.6 But the attraction of this approach is also the source of its undoing. The instrumental mind, resolutely fixed on the chase, has no need and, therefore, even less care for passion, opinion, belief, spirit and the wisdom of custom. All are impervious to the formulated rules of strategy and thus must be exorcised as defects that obfuscate and defy the truth of the cause. Forethought, as opposed to foresight, is the rule here. But the search for answers, that is, precisely formulated answers which demonstrate conclusions in advance of the world of conduct, deprives the instrumental mind of the greater part of human relations. For the splendour and spectacle of human relations arise out of its fundamental indeterminacy; and yet there is in this indeterminacy an intelligible order of things, to which families, nations, universities, marriages, churches and cricket clubs all attest, because men and

172 William Bain women possess some shared understanding of how they should conduct themselves. In other words, it is on account of our understanding of some notion of morality that we know what it means to conduct ourselves as a family member, citizen, student, spouse, worshiper and member of the team. So if by some mischance we were to be shorn of our moral sense – perhaps a Promethean confidence in the power of unaided reason convinced us that we no longer had a need for its moderating humility – it would be hardly possible to speak intelligently about international administration or anything else that originated in human thought and action. And then we will have been reduced to the basest of creatures, endowed with the reflex of voice but divested of the faculty of speech, who will have also renounced the uncertain adventure of deliberation for a slavish devotion to abstract certainty.7 It is here that the predicament of the instrumental mind is brought into full relief: the illusion of certainty may bring comfort, the collection of zeros having been given a discerniblecum-desirable order, but it has nothing to do with the world. To make any headway in understanding the rights and wrongs of international administration we must consider it in its context; it must be interrogated, not for what it is meant to achieve, but for the values and corresponding expectations that render it intelligible as a mode of conduct at all. But the instrumental mind, determined to make the world right and yet frustrated by its recalcitrant resistance to the cure, is dispossessed of any way of discerning of what that mode of conduct involves. The instrumental mind is most adept at tinkering with things; and when things cannot be repaired it assumes the perilous role of a builder who forsakes experience for the promise of a new blueprint, a new system or a new definition. That nothing in human relations is to be more feared than a builder – the great builders of history being most commonly remembered for a legacy of ‘enlightened’ misery – escapes the mind which shrinks from the disconcerting world of moral choice. Indeed, a mind predisposed to making things work is ill-equipped to express more than astonishment, followed by despair, when it suddenly realises that UN Interim Administration Mission in Kosovo (UNMIK), a mission ordered to the creation of a democracy in Kosovo, ‘is not structured according to democratic principles’.8 But surely it must matter that the mission in Kosovo, like the mission that brought East Timor to independence, is of a character that rules out a structure grounded in democratic principles; in other words, it presupposes a relationship that is different in kind than one that admits the consensual values and expectations implied by democracy. The instrumental mind sees no difference because it has no need for such

In praise of folly 173 a distinction; instead it sees a contradiction, although not on evidence of immanent inconsistency but on pain of standing before the righteousness of the cause. And the point at which all distinction has been cleared from the field, and with it the ground on which moral criticism finds a sure footing, the category international administration is reduced to an empty bit of academic jargon that is useful in enlarging our collection of zeros while incurring all the dangers that go with normative absurdity.

Contract and trust The emptiness of the category international administration stems from a failure to distinguish clearly between two distinct kinds of legal relationship: contract and trust. A relation of contract implies an engagement in which the contracting parties have agreed to share in the benefits and liabilities of exchange; in other words, it involves an exchange of promises, a quid pro quo, which creates an association on the basis of mutual obligation. Thus, the notion of a contract implies a kind of partnership, a societas as it is specified in classical Roman law, which is intelligible in terms of reciprocal agreement, common interest and intention to form such a partnership.9 And as a relation constituted for the sake of joint exploitation, whereby promises are given in exchange for considerations received, the distinguishing characteristic of the partnership is the independence of individual partners in respect of their interests, rights and duties. But the fundamental equality implied by this condition of independence, that is, of independent partners pursuing self-chosen wants and satisfactions, cannot be taken to mean equality in all things. A relation of contract neither implies nor entails an equal distribution of benefits; rather, it requires an equality of authority and jurisdiction to enter into contractual relations. For the essence of all contractual relations lies in the mutual recognition of partners, equal in respect of authority and jurisdiction, and, therefore, equal in their freedom to dispose of their interests according to their own will. It is in this sense that a relation of contract, as R.G. Collinwood explains, presupposes ‘the idea that no one could legally be a party to a contract unless he was capable of making up his mind for himself and explaining it, if need be, in court’.10 In contrast, a relation of trust is suited to the person who is incapable of making up his mind for himself; and it obtains where the preconditions of contractual relations, stability of possession, impartial administration of justice and good faith and fair-dealing are

174 William Bain substantially absent.11 For a relation of trust is intelligible, not in terms of the reciprocal rights and duties that join partners in a joint enterprise but in terms of a joint enterprise that is created for the benefit of a third party. So where a relation of contract involves two parties, a relation of trust involves three: trustor, trustee and beneficiary.12 Trustor and trustee are related in respect of a contract – a trust deed – whereby the former vests in the latter possession of some thing; however, the use of that thing is conditioned by the interests of the beneficiary. It is in the peculiarities of the way in which possession and use are coordinated without incurring the liabilities of mutual obligation that it is possible to distinguish a relation of trust from a relation of contract. Unlike partners in a contract, who transfer rights and assume obligations in a deliberate act of mutual exchange, a trustee assumes an obligation that cannot be opposed to the right of the beneficiary. In other words, a trustee assumes a unilateral obligation, a duty that entails no corresponding right, which is entirely independent of any consent given by the beneficiary. For the beneficiary of a trust is regarded as having no will of his own; it is the object of a contract in so far as the head which administers the body is not a part of that particular body. Indeed, trustee and beneficiary are joined in a non-self-governing form of association that enjoys no independent life of its own: there is common interest but, absent the mutual ability or authority to give consent, there is no reciprocal agreement or intention to form a partnership.13 The failure to distinguish a relation of contract from a relation of trust has given credence to the puzzling complaint that some international administrations are insufficiently democratic because they are insufficiently accountable to the people they are meant to serve. Supreme authority, so this complaint goes, unchecked by the restraints imposed by periodic elections, leaves no constitutional means by which to ‘cashier the king’ in case of abuse. Thus, the Ombudsperson Institution in Kosovo offers an annual reprise of this complaint, noting that UNMIK remains substantially undemocratic although it has transferred several ‘competences and functions’ to local authorities,14 in the mistaken belief that participating in the engagements of government is the same thing as authorising government to undertake those engagements. That dependent populations should be drawn into the activities of government has long been recognised; for the dangers of the international civil servant, ignorant of the advantages of ‘participatory governance’, did not escape the great architects of colonial administration in days long past.15 However, ‘democratic principles’ have nothing to do with the conditions in terms of which international

In praise of folly 175 administrators and local populations are related; indeed, as Michael Oakeshott observes, the suggestion that the conditions of any association are or should be ‘democratic’ is as absurd as it is false. To be a member of an association, that is, a specific persona related to another specific persona, is to be related to other members in terms of particular obligatory conditions that convey what it means to be joined in such a relationship.16 One of the chief difficulties with the name international administration stems from a clumsy attempt at generalisation that fails to specify a distinct and discrete mode of association; it is a rather more haphazard name that is best expressed in terms of what it is not: peacekeeping, state-building, military occupation or perhaps something else. So if we are to make sense of what international administration entails, to probe, for example, the legitimacy of authority vested in international civil servants, then we must first possess an understanding of the obligatory conditions in terms of which ruler and subject are related in particular international administrations. For it is only in respect of those conditions that judgements concerning issues of legitimacy, accountability and ownership are articulated as coherent expressions of thought. But merely pointing to the fact of internationally sanctioned coercive authority, ordered to the promotion of public order, economic development and political reconciliation in ‘war-torn’ territories, tells us very little about the conditions of association in Kosovo, or anywhere else for that matter. Instead, we must begin by interrogating the constitutional arrangements of particular international administrations with a view to discerning their shape. We want to know the right by which particular international administrators possess authority over particular ‘local populations’. Is their title to rule confirmed by an ordinance of God, a natural disposition to rule well or an expression of consent given by someone who is recognised as being able to give consent? And if the answer is ‘consent’, then we also want to know whose consent is required; otherwise, we shall have no means by which to say that authority is ‘rightful’ authority. Indeed, it is in addressing ourselves to these questions – and others like them – that we are able to move at least part of the way towards discerning the conditions that express the relationship that obtains between ruler and subject in particular international administrations. It is in the peculiar shape of a constitution, that is, the right ordering of authority, power and purpose that we are able to discern the relation of the associates. However, the business of demonstrating novelty, coupled with a programmatic exercise in distinguishing past

176 William Bain from present, has resulted in far more din and confusion than conceptual clarity. Degrees of authority are said to distinguish the innovation of different forms of international administration and the unique circumstances of contemporary world affairs are said to distinguish these forms from the experience of empire.17 Of course, the sweet taste of innovation has always been the lure of the enthusiast who prefers to mould circumstances to a scheme; and yet the curse of innovation divorced from history is the enjoyment of a pristine pitch which is unfit for play. Indeed, grading international administration according to degrees of authority is as ‘useful’ as grading monarchies and republics to illuminate degrees of statehood. For the conditions that relate the associates of an international administration are intelligible, not in a comparative examination of the authority invested in several offices of government, but in particular obligations that join a persona called a ruler and a persona called a subject in a recognised relationship. One such relationship is that of gift, whereby something given is not burdened by further conditions. It is this relation that joins ruler and subject in the Hobbesian civil association: supreme authority to rule is tendered in a grant that imposes no obligations on the sovereign.18 In contrast, the personae of ruler and subject in an international administration are related in terms of conditions – the assumptions, expectations and obligations – that are intelligible expressions of other types of human relationship, namely contract and trust. But a proper understanding of what international administration involves is precluded by a tendency to unite contract and trust with a conjunctive ‘and’ when they should be distinguished with a conjunctive ‘either’ contract ‘or’ trust. For it is impossible to reduce one to the other or to combine them in order to form a composite whole: ‘contract’ and ‘trust’ are the names of two mutually exclusive modes of association which are specified in terms of their own conditions and only in terms of those conditions.19 So in understanding international administration, not as a category in its own right, but as an amalgam of two distinct categories, we are furnished with the basic points of reference against which to assess the ‘rights’ and ‘wrongs’ of international administration; and we are then in a position to pose and to offer coherent and authoritative answers to questions pertaining to ‘democratic deficits’, ‘local ownership’ and ‘benevolent despotism’. For example, if the international presence in Kosovo is grounded in a relation of trust, and it seems as if it is, then the charge that UNMIK is insufficiently accountable to the people its serves is exposed as the nonsense that it is. A trustee is by definition accountable, not to

In praise of folly 177 the beneficiary of the trust, but to the authority that granted possession and use of the thing held in trust – the trustor; and no amount of tinkering with the model to increase the ‘ownership’ of the local ‘stakeholders’ can make UNMIK accountable to the people. For the right of the beneficiary affords no liberty to hold the trustee to account; rather, it is lodged against the trustee’s obligation to use the thing held in trust for its intended purpose. Indeed, in making use of this distinction, as well as that implied by a relation of contract, it is possible to engage the normative questions raised by international administration without also indulging in normative absurdity.

Of praise and folly It might be well considered to stop here, the distinction between contract and trust having invested in international administration a normative coherence that it would otherwise lack. However, there is in this distinction something troubling, at least so far as the protection of human rights and fundamental freedoms are concerned, which is deserving of further attention. The protection of these rights is part and parcel of the underlying justification of international administration. Hence, the Dayton Peace Accords charge the contracting parties with the responsibility of securing all persons falling within their jurisdiction in the enjoyment of these rights, including the ‘rights of liberty and security of person’; and the Security Council resolutions that established international administrative authority in Kosovo and East Timor similarly enjoin the promotion and the protection of these rights as a primary responsibility of their respective mandates.20 Still, there is in the coercive authority established by these arrangements an important difference that should not be overlooked. The Dayton Accords impose obligations insofar as the parties ‘have agreed’ to assume the burden of those obligations; and, in that respect, the coercive authority enjoyed by the international presence in Bosnia and Herzegovina corresponds with the essential presupposition of all human rights: the principle that human beings should not be subject to coercion except where they have given their consent. In contrast, coercive authority in Kosovo and East Timor was established for the sake of a third party that cannot be said to have agreed to undertake the burden of any obligation; for there is great difficulty in saying that someone is obliged by a contract to which he is not a party.21 The dilemma, then, is now clear for all to see: the international administrator is responsible for promoting and protecting human rights, including the right to liberty which presupposes the

178 William Bain authenticity of human choice, but cast as a trustee he is only able to do so by withholding or suspending the principle that human beings should be free of coercion save for where they have given their consent. In other words, the promotion and protection of human rights in places like Kosovo must involve, albeit temporarily, the violation of at least some of the rights that are to be promoted. Thus, Kosovo might be described as a ‘human rights black-hole’, as it has been by the Ombudsperson Institution, because the enjoyment of some rights can never be fully secured so long as UNMIK retains supreme legislative and executive authority independently of the will of the people it rules.22 But the mere existence of coercive authority is not enough to sustain objection. There is no doubt that the Office of the High Representative, which is responsible for overseeing the implementation of the Dayton Peace Accords, possesses coercive powers so intrusive that they have been compared (unfavourably) to those of a colonial governor.23 For the High Representative is empowered to promulgate law, invalidate elections and dismiss public officials, even those at the highest level, all in the interest of promoting the creation of a multiethnic democratic society fit for membership in the European family of nations. Indeed, the dismissal of Dragan Covic from the Presidency of Bosnia and Herzegovina, for alleged abuse of office, is emblematic of the internationally led effort to nurture the country’s ‘still very fragile’ democracy.24 So we must concede that the scope of this authority is no less far reaching than it is intrusive; and yet it would be a mistake to concede as well that this authority is somehow objectionable simply because it is coercive, perhaps even more so than what normal democratic politics allow. The authority of the High Representative amounts to nothing more than a right enjoyed in virtue of an exchange of promises – that is, in a relation of contract. Rights of this sort are what H.L.A Hart calls special rights; they are rights which entail obligations that limit the liberty of the parties to which they pertain. And it is in respect of these obligations that a person giving a promise may be rightfully coerced: ‘[T]he promise has a temporary authority or sovereignty in relation to some specific matter over the other’s will which we express by saying that the promisor is under an obligation to the promisee to do what he has promised.’25 To this sort of coercion there can be no objection; for the person who undertakes a voluntary obligation remains fully independent, in respect of the authority to pursue self-chosen wants and satisfactions, because the obligation that limits his freedom of action is contracted in virtue of the liberty to do so.

In praise of folly 179 The value of liberty must assume a rather different character where an obligation is assumed for the sake of the beneficiary of a trust. It cannot mean the same thing as the continuing liberty – omnipotence in all matters except for those which affect the enjoyment of future freedom – which provides the underlying premise of humanity understood as capacity for choice.26 Samuel LaSelva addresses himself to this kind of liberty in examining John Stuart Mill’s refusal to countenance paternal relations between free and rational persons. For Mill, liberty consists in following one’s self-defined course of action; and the enjoyment of liberty presupposes the activities of thinking, discussing, deliberating and choosing, which all develop and cultivate the work that man is himself. Thus, liberty should in all cases be preserved because to extinguish it or to exchange it for some other good is to deny the continuing liberty upon which the humanity of self-direction depends. This kind of liberty cannot be a part of a relation of trust, at least so far as the beneficiary of the trust is concerned; for a beneficiary, subject to the guidance of an alien will, possesses no such liberty to extinguish or exchange. Indeed, the great challenge posed by the institution of a trust amongst equals lies in having to give an account of the reasons for which liberty should not be persevered without mocking the principle that ‘[a]ll human beings are born free and equal in dignity and rights’.27 Appeal might be made to the prevention of harm, whereby the value of liberty is simply abandoned for the sake of other goods, perhaps, for example, the prevention of mass starvation. This argument proceeds from the objection that faced with starvation, liberty affords a poor substitute for food. Appeal might also be made to the value of enlarging liberty by limiting its present enjoyment; that is, to an argument which assumes ‘more future freedom is better than less present freedom’.28 In both cases, however, the value of liberty is glossed with an inferior status; and it is an inferior liberty that offers an equally inferior defence against the relation of force upon which such a trust must rest. So we should all praise the triumph of humanitarian sentiment over exclusive state sovereignty: the rights of peoples have finally eclipsed the rights of states. No less praiseworthy is the international community’s ever-growing willingness to address human suffering in faraway places. That the humanitarian catastrophe in Darfur continues unabated provides no proof of insincerity: complaints about inaction become audible only so far as there is at least some recognition that assistance should be given. And we should praise the international provision of public goods without which large groups of human beings would be left destitute in the most appalling squalor. For

180 William Bain nobody denies the good of an impartial legislative authority, civil service and criminal justice system; a steady supply of electricity, access to clean water and regular garbage collection and an education system replete with well-paid teachers working in schools that have benefited from a fresh lick of paint. But the folly of it all is intelligible in its cost: the denial of man’s humanity as a thinking, choosing agent. Thus, a zeal for emancipating the oppressed, for example, affirming their freedom of thought and freedom of expression, leads to the temporary suspension of their freedom to think and to express for themselves. The beneficiary of a trust may be wrong in his opinions; he may not understand which opinions matter most; or he may be right in his opinions but, crushed by the weight of an oppressive tyrant, lacks the wherewithal to act on them. Likewise, his views may be solicited, he may enjoy the courtesy of consultation, and he may protest decisions that are taken. What he lacks, though, as do all beneficiaries of a trust, is the authority to reply: ‘no, I shall do something else.’ The plight of the beneficiary, who is free and yet is not free, points to nothing so mundane as a contradiction that can be overcome by redefining that which upsets the balance of things; it is the all too predictable consequence of a morality that Oakeshott describes as the self-conscious pursuit of the ideal – that is, the activity of aligning the world as it is with the form that it should be.29 The defect of this kind of morality lies in its tendency to destroy the things that dull the sharp and unforgiving edges of the ideal. For it is the genius of tradition, the acquired habits of conduct rather than the application of ideals in advance of conduct, which saves us all from a righteous but selfinflicted death. Destroy these things, warned Edmund Burke, and ‘[a]ll the decent drapery of life is to be rudely torn off’.30 For Oakeshott, the glare of the ideal is softened by the habit of knowing how to conduct oneself; it is an acquired, as opposed to, learned knowledge that defies all attempts at systematisation. But a morality of ideals, impatient with the imperceptible but sure change that is the life of tradition, seeks coherence in the symmetry of ideology. For the clear sight afforded by ideology has always offered something that the restraining thickets of tradition cannot: a direct route to the realisation of the ideal, however it might be specified or applied. And yet in a rather perverse way this clear sight is somehow blind to the absurdity to which a morality of ideals must lead: ‘[I]t is a form of the moral life which puts upon those who share it, not only the task of translating moral ideals into appropriate forms of conduct, but also the distracting intellectual burden of removing the verbal conflicts of ideals before moral behaviour is possible.’31

In praise of folly 181 It is in this dubious and, indeed, impious enterprise of making ideals and language correspond with one another that we lose all sense of how to conduct ourselves. Making language to mean what we need it to mean, in what amounts to little more than a linguistic doctrine of squatter’s rights,32 reduces morality to an impoverished record of feeling and opinion. None other than Thucydides, the great historian of tragedy, necessity and moral choice chronicled the form that this activity takes. To fit in with the change of events, words, too, had to change their usual meanings. What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; and any idea of moderation was just an attempt to disguise one’s unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action.33 The international administrator as trustee engages in a similar enterprise of making words fit the course of events: what used to be described as a denial of human dignity – subjection to alien rule – is now described as the promotion and protection of fundamental human rights. But reconciling language to ideals heralds neither advance in linguistic clarity nor a growth in humanitarian sentiment but a kind of moral corruption that augers the breakdown of social life. For the international administrator tends to be a builder, like the builders of the Tower of Babel, who reaches for a type of heaven, unaware that ‘too often our self-conscious pursuit of ideals hinders us [and others] from enjoying them’.34 And in the passionate desire to do good, and yet deprived of any way of knowing that it might be wrong, the international administrator corrupts ‘us’ as well as ‘them’. He corrupts ‘them’ in denying their humanity as thinking, choosing agents; and he corrupts ‘us’ in denying the will upon which recognition of our own humanity depends.

Notes 1 See Oakeshott, M., ‘Talking Politics’, Rationalism in Politics and Other Chapters, rev. edn., Indianapolis, IN: Liberty Fund, 1991, pp. 446–54. 2 See Krauthammer, C., ‘The Unipolar Moment Revisited’, The National Interest, 2002, pp. 5–17; Harland, D., ‘Legitimacy and Effectiveness in International Administration’, Global Governance, vol. 10, no. 1, 2004, pp. 15–19; Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, 2001.

182 William Bain 3 Frederick William Maitland once used this phrase in a discussion of the legal personality of the state. See Runciman, D. and Ryan, M., ‘Moral Personality and Legal Personality’, in D. Runciman and M. Ryan (eds), Maitland: State, Trust and Corporation, Cambridge: Cambridge University Press, 2003, p. 71. 4 Paris, R., At War’s End: Building Peace after Civil Conflict, Cambridge: Cambridge University Press, 2004, p. 206. 5 Fearon, J. and Laitin, D., ‘Neotrusteeship and the Problem of Weak States’, International Security, vol. 28, no. 4, 2004, p. 28. 6 Caplan. R., International Governance of War-Torn Territories: Rule and Reconstruction, Oxford: Oxford University Press, 2005, pp. 251–6. 7 On the distinction between voice and speech see Aristotle, The Politics, T.A. Sinclair (ed.), London: Penguin Books, 1992, vol I: Book ii. 8 Ombudsperson Institution in Kosovo, Second Annual Report, 2001–2002, 10 July 2002, p. 1. 9 Collingwood, R.G., The New Leviathan, Oxford: Clarendon Press, 1942, p. 133. On contract generally see Buckland, W.W. and McNair, A., Roman Law and Common Law, F.H. Lawson (2nd edn), Cambridge: Cambridge University Press, 1952, chapter 8; and Hobbes, T., Leviathan, M. Oakeshott (ed.) Oxford: Basil Blackwell, 1949, chapter 14. 10 Collingwood, The New Leviathan, p. 133. 11 For an excellent discussion of contractual relations and the type of society it implies see Berry, C., Social Theory of the Scottish Enlightenment, Edinburgh: Edinburgh University Press, 1997, chapter 6. 12 Barker, E., Social Contract: Chapters by Locke, Hume, and Rousseau, Oxford: Oxford University Press, 1971, pp. xxi–xxiv. 13 Maitland, F.W., ‘The Unincorporated Body’, in D. Runciman and M. Ryan (eds), Maitland: State, Trust and Corporation, Cambridge: Cambridge University Press, 2003; Bain, W., ‘In Pursuit of Paradise: Trusteeship in Contemporary International Society’, Tidsskriftet Politik, vol. 7, no. 2, 2004, p. 11. 14 See for example Ombudsperson Institution in Kosovo, Fourth Annual Report, 2003–2004, 12 July 2004, p. 7. 15 Report of the Secretary-General, No Exit without Strategy: Security Council Decision-making and the Closure or Transition of United Nations Peacekeeping Operatiosns, S/2001/394, 20 April 2001, para. 10–12; Bain, W., Between Anarchy and Society: Trusteeship and the Obligations of Power, Oxford: Oxford University Press, 2003, pp. 48–50, pp. 59–62. For an interesting discussion of these issues see Chopra, J. and Hohe, T., ‘Participatory Intervention’, Global Governance, vol. 10, 2004, pp. 289–305. 16 Oakeshott, ‘Talking Politics’, pp. 449–50. 17 Caplan, International Governance, pp. 14–16. 18 Hobbes, Leviathan, chapter 18. 19 On the character of a mode of association see Oakeshott, M., ‘The Rule of Law’, in M. Oakeshott (ed.), On History and Other Chapters, Indianapolis, IN: Liberty Fund, 1999, pp. 129–30. 20 US Department of State Dispatch, General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 6, 7/supplement, 1996, p. 1; United Nations Security Council Resolution 1244, S/RES/1244, 10 June

In praise of folly 183

21 22

23 24 25 26

27 28

29 30 31 32 33 34

1999, p. 4; and United Nations Security Council Resolution 1272, S/RES/1272, 25 October 1999 , p. 3. See Maitland, ‘The Unincorporated Body’, p. 54. See Ombudsperson Institution in Kosovo. Fourth Annual Report, 2003–2004, p. 18 and UNMIK, Regulation No. 1999/1, On the Authority of the Interim Administration in Kosovo, UNMIK/REG/ 1999/1, 25 July 1999, sec. 1. See Chandler, D., ‘Bosnia’s New Colonial Governor’, The Guardian, 9 July 2002 and generally, Bosnia: Faking Democracy after Dayton, London: Pluto Press, 2nd edn., 2000. Ashdown, P., ‘Decision Removing Dragan Covic from his Position as a Member of the Presidency of BiH’, Office of the High Representative, 29 March 2005. Hart, H.L.A., ‘Are There Any Natural Rights?’, The Philosophical Review, vol. 64, no. 2, 1955, pp. 183–4, emphasis in original. The following argument is derived principally from LaSelva, S., ‘Selling Oneself Into Slavery: Mill and Paternalism’, Political Studies, vol. 35, no. 2, 1997, pp. 216–22 and Hart, H.L.A., The Concept of Law, Oxford: Clarendon Press, 1961, p. 146. Brownlie, I., ‘Universal Declaration of Human Rights, 1948’, in I. Brownlie (ed.), Basic Documents of Human Rights, Oxford: Clarendon Press, 3rd edn., 1992, Art. 1. LaSelva, ‘Selling Oneself’, pp. 212–13. On the subject of harm in international relations see Linklater, A., ‘Citizenship, Humanity, and Cosmopolitan Harm Conventions’, International Political Science Review, vol. 22, no. 3, 2001, pp. 261–77. Oakeshott, M., ‘The Tower of Babel’, Rationalism in Politics and Other Chapters, Indianapolis, IN: Liberty Fund, 1991, pp. 478–9. Burke, E., ‘Reflections on the Revolution in France’, Select Works of Edmund Burke, vol. 2, Indianapolis, IN: Liberty Fund, 1999, p. 171. Oakeshott, ‘The Tower of Babel’, pp. 476–80. See Lucas, J.R., ‘Freedom and Prediction’, The Aristotelian Society, vol. 41, 1967, p. 163. Thucydides, History of the Peloponnesian War, Rex Warner (trans.) London: Penguin Books, 1972, Book III: 82. Oakeshott, ‘The Tower of Babel’, p. 482.

10 Conclusion From intervention to administration Aidan Hehir

Introduction There appears to be no doubt but that international relations is in the midst of a turbulent realignment. While the changes wrought by the collapse of the Soviet block catalysed the wholesale disruption of the previous international system, the present era, dominated as it is by the shadow of 9/11, is characterised by a series of evolving dramas the outcome of which remains difficult to predict. Central tenets of international relations are undergoing significant evolutions and new conceptualisations of the integral features of the international environment are competing for primacy. This is especially true with respect to the definition of sovereignty that, in both legal and normative terms, is contested and evolving. The dominant conception of this key concept that emerges, if indeed one does emerge, will surely shape international relations for a long time to come. Prediction is notoriously difficult, and necessarily contentious, but it is perhaps no exaggeration to suggest that the present metamorphosis of sovereignty will be seen as a juncture as significant to the evolutionary trajectory of the concept as the Treaty of Westphalia in 1648 and the UN Charter in 1945.

The coming paternalism The present era is not simply replete with uncertainties and evolving trends and norms; it is also characterised by a prevailing pessimism and a pronounced sense of fear. International terrorism and contagion from intra-state instability have emerged as new concerns while old issues, such as nuclear war and inter-state warfare have re-emerged in the wake of 9/11. The role of the United States, the undisputed global

From intervention to administration 185 hegemon is perhaps more contentious today than ever. If one sees the United States as a force for good fulfilling the stabilising role of international ‘colossus’ one may well worry about its manifest inability to successfully extricate itself from both Afghanistan and Iraq.1 If one believes the United States to be acting in an increasingly unilateral and aggressively expansionist manner Iraq and Afghanistan again serve as confirmation of ones fears while the ongoing war of words with Iran is worryingly similar to the pre-invasion diplomacy that characterised US–Iraq relations in 2002–3. For purveyors of both perspectives on the United States role and intentions, the future is worryingly uncertain. However, it is worth noting that the present pessimism is not a new phenomenon. Less than 15 years ago a very similar sense of uncertainty pervaded international relations. The optimism that greeted end of the Cold War and the dawn of the ‘New World Order’ was short-lived and there were many that forecast a new era of conflict and international instability. Kagan famously predicted ‘The Coming Anarchy’2 while Mearsheimer warned ‘the prospects for major crises and war in Europe are likely to increase markedly [in the post Cold War era]’.3 The atrocities in Srebrinica and Rwanda undermined the credibility of international organisations such as the United Nations (UN), the European Union (EU) and North Atlantic Treaty Organization (NATO), while also serving to highlight the evident unwillingness of the Cold War victors to adhere to a morally driven internationalism. The problem then facing the world, it was argued, stemmed from the increase in intra-state instability and the unwillingness of militarily and economically powerful states to act to prevent or halt humanitarian disasters in these so-called failing or failed states. Thus, increasingly humanitarian advocacy lobbied for greater Western interventionism and the diminution of the principle of sovereign inviolability in favour of a responsibility, indeed according to some a duty, to intervene. As Chatterjee and Scheid note, in light of the violence in the Balkans and particularly the genocide in Rwanda, ‘something of a consensus developed, namely that a state’s sovereignty should not shield it from outside military intervention when it brutalises its own people’.4 This perspective achieved it most spectacular success in 1999 when NATO intervened in Yugoslavia ostensibly for purely humanitarian reasons. This ‘war fought for values’5 galvanised those eager to create a more ‘civilised’ world based on respect for individual rather than state sovereignty and a plethora of articles heralded the dawn (again) of a new equitable, rights-based international order.6

186 Aidan Hehir Those critical of this new interventionist trend were not necessarily opposed to the idea of human rights or even ‘saving strangers’. They pointed instead to the malleability of humanitarianism as a justifying rationale and the dangers inherent in superseding positive international law in favour of a necessarily nebulous and subjective ‘natural law’. Sovereign equality, critics of intervention argued, had revolutionised international relations and made it possible for militarily weak and economically underdeveloped states to achieve an equitable status with more powerful states. The codification of sovereign inviolability provided a legal guard against the kind of great power aggression that had characterised the pre-Charter ‘Westphalian’ era.7 Yet, critics of the new interventionist predisposition were too often characterised as amoral advocates of the status quo, indifferent to the plight of the oppressed. While in certain cases this was correct,8 this oversimplified the critique of humanitarian intervention and neglected to identify the sound theoretical and even moral basis behind the arguments for the maintenance of the notion of sovereign equality and sovereign inviolability. As Chandler notes, ‘rather than highlight the historical links between realism, the rejection of universal ethics and the advocacy of peaceful co-existence, today traditional international relations theorists are portrayed as if they were advocates of power, injustice and war’.9 The debate regarding humanitarian intervention was ‘eclipsed’ by the events of 9/11 as the ‘war on terror’ dominated international relations.10 Following the invasions of Afghanistan and Iraq humanitarian intervention slipped further from public and political consciousness prompting some to wonder if anyone was even interested in the issue anymore.11 Part of the reason for the lack of interest in humanitarian intervention stemmed from the fact that, to a large extent, the issue was no longer should an intervention take place, but rather what should be done post-intervention. Hence, state-building replaced humanitarian intervention as the issue around which the debate regarding the merits, morality and legality of Western interventionism coalesced. Certainly the issue of whether the US-led coalitions should have invaded Afghanistan and Iraq appears significantly less salient in comparison to the issue of what to do once they were in positions of power in these countries. Therefore, while the subjects and actors have altered in the transition from humanitarian intervention to state-building the nature of both the problem (failing states) and the proposed solution (Western intervention) remain the same. The advocacy for both humanitarian

From intervention to administration 187 intervention and international administration involves an inherent sense that sovereignty is both conditional and variable. Instead of being a legally defined characteristic that is uniformly manifest, states are considered to enjoy variable levels of sovereignty. Certainly in previous eras, and undoubtedly even after the codification of sovereign equality in 1945, sovereignty has been respected unequally but this was a consequence of the realities of international relations and power imbalance in particular. When violations of sovereignty occurred they were not heralded as the precursors of a wholesale reconceptualisation of sovereignty and a fundamental alteration in the application of the concept.12 The contemporary challenge to sovereignty, however, suggests just such a change. Bain describes as ‘proportionate equality’ this emerging conceptualisation of sovereignty as a right bestowed only upon states that meet certain criteria, rather than a legal tenet enjoyed by all internationally recognised states. This conception determines that, ‘the enjoyment of rights, duties or privileges must be subject to some test of merit so that particular persons who disclose particular qualities may, for example, assert a claim of preference in respect of political power’.13 State-building is undertaken with a view to bringing certain purportedly failed states up to the standards ostensibly embodied and manifest in what logically must be assumed to be considered ‘successful’ states. As Cunliffe notes, the necessity of states has not been challenged by the interventionist trend as by the very nature of initiating a ‘state-building’ process there is an attempt to create functioning states.14 What constitutes a state is however the crux of the issue; the traditional criteria for statehood no longer appear to suffice with human rights and democracy constituting necessary components of true ‘states’. Clearly the attainment of statehood is no longer an objective legal process but increasingly a top-down imposition of a subjective, normative vision of the good state. This has profound implications for international relations.

Asymmetrical sovereignty The effect of the codification of sovereign equality in the UN Charter and subsequent international legislation15 meant, ‘it no longer made sense to speak of a hierarchical society of states in which rights of membership and participation were granted in proportion to a society’s development and capability’.16 Yet, contemporary intervention advocacy explicitly adopts a rhetoric that implies the existence of a sovereignty hierarchy. Robertson suggests that a state’s right to sovereignty must be conditioned on their record and in this respect

188 Aidan Hehir ‘The reality is that states are not equal.’17 Glennon defends the right of ‘enlightened states’ to abandon the UN Charter’s codification of sovereign equality and inviolability arguing that existing international law is irrelevant as these enlightened states naturally act in pursuit of international justice and he concludes, ‘If power is used to do justice, law will follow.’18 Certain states are considered, therefore to have attained an intellectual maturity – a higher state of sovereignty – and are being increasingly lobbied to spread their system to lesser states. The legitimisation afforded to the state-building process is, therefore, premised on two key assumptions; first that sovereign equality must be superseded by a new conception of states as possessing various levels of sovereignty. Second, that states at the zenith of this sovereignty hierarchy should enable those states below them to achieve full maturity via the process of state-building in those cases where the internal composition of the state is particularly lacking.

Conclusion This volume analyses these theoretical assumptions underpinning the increasingly prevalent process of state-building and the implications this has had and may have for international relations. While there is no rigid uniformity linking the contributors here, a shared concern is the manner in which this process is being undertaken without sufficient consideration for the potentially corrosive effects such a major shift in the status of sovereignty may have. As noted by Wilde the present process of state-building has clear parallels with colonialism and it is surely imperative that a return to the politics of Great Power patronage and the ethos of the ‘civilising mission’ do not re-emerge in a repackaged form.19 It may well be the case that certain states have fallen into such internal disarray that they require, even seek, temporary international administration. However, as Bain notes, ‘in accepting the merit of this argument we must recognise its consequences. The idea of trusteeship, no matter how enlightened and well intentioned, cannot escape its imperial past because it belongs to a mode of conduct that is imperial by its nature.’20 Thus the premise is that intervention and administration, regardless of whether it is executed by states or international organisations, constitutes the renaissance of, possibly, the practice of colonialism but certainly the logic of its more benevolent presumptions. It is upon analysing both the accuracy and implications of these benevolent presumptions that this volume has focused.

From intervention to administration 189 Pupavac’s chapter addresses the manner in which non-governmental organizations (NGOs) have greatly facilitated the prevalent perception of sovereign inequality through their advocacy.21 The willingness of NGOs to exceed traditional aid provision in favour of overtly lobbying for Western intervention has clearly complemented the agenda of states seeking to legitimise interventionism. Pupavac additionally provides a compelling explanation for the willingness, albeit clearly a selective one, increasingly manifest in the post-Cold War era, among Western states to increase their international interventionism which complements Cunliffe’s earlier argument. Critics, or at lest those sceptical, of state-building can too easily regress into gleeful cynicism whereby any negative event or trend manifest during the tenure of an international administration is highlighted as evidence of the entire project’s failure. Disruptions occur within all polities and do not necessarily indicate a central irredeemable flaw. While analysts of state-building enterprises can be guilty of over extrapolating from minor disruptions to the political process, advocates of state-building similarly display a reluctance to allow the organic evolution of emerging or recovering polities seeking to highlight issues such as corruption as indicative of the necessity of their presence.22 As highlighted by Chandler, the statebuilding process is too often characterised by imposition rather than local evolution with the administrators reluctant to empower local actors.23 As noted by the case studies presented in this volume, the international administrations in East Timor, Bosnia and Kosovo share a common propensity to impose rather than empower and in each case their administrative competencies and operational style exceed mere facilitation and are rather characterised by imposition.24 This volume has presented what is clearly a critique of the statebuilding process. It is not a ‘how to’ manual detailing the best way to rebuild states.25 Rather, the contributors here analyse some of the key presumptions underpinning the process and identify the macro-level disruption these presumptions will have for international relations. With the ongoing situations in Afghanistan and Iraq continuing to dominate international politics and with the maintenance of international administrations in Bosnia, Kosovo and elsewhere, it is likely that the issue of state-building will retain salience for some time to come. To fully understand the catalysts for state-building, the manner in which the process is operationalised and the effect of this process on international relations there is a pressing need for critical analysis of both the theory and practice of state-building. It is hoped that this volume will contribute to this process.

190 Aidan Hehir

Notes 1 See for example, Ferguson, N., Colossus: The Rise and Fall of the American Empire, London: Allen Lane, 2004. 2 Kaplan, R., ‘The Coming Anarchy’, Atlantic Monthly, vol. 273, no. 2, February 1994, pp. 44–76. 3 Mearsheimer, J., ‘Back to the Future’, International Security, vol. 19, no. 3, 1990, p. 7. 4 Chatterjee, D. and Scheid, D., ‘Introduction’, in Chatterjee, D. and Scheid, D. (eds), Ethics and Foreign Intervention, Cambridge: Cambridge University Press, 2003, p. 5. 5 Blair, T., ‘A New Generation Draws the Line’, Newsweek, 19 April 1999, p. 40. 6 See, Kouchner, B., ‘The Right to Intervention: Codified in Kosovo’, New Perspectives Quarterly, vol. 16, no. 4, Summer 1999. 7 Chandler, D., From Kosovo to Kabul: Human Rights and International Intervention, London: Pluto Press, 2002. 8 See for example, Luttwak, E., ‘Give War a Chance’, Foreign Affairs, vol. 78, no. 4, 1999. 9 Chandler, D., Constructing Global Civil Society, Hampshire: Palgrave, 2004, p. 14. 10 Lang, A., ‘Introduction: Humanitarian Intervention – Definitions and Debates’, in Lang, A. (ed.), Just Intervention, Washington, DC: Georgetown University Press, 2003, p. 1. 11 Macfarlane, N., Thielking, C. and Weiss, T., ‘The Responsibility to Protect: Is Anybody Interested in Humanitarian Intervention?’, Third World Quarterly, vol. 25, no. 5, pp. 977–92. 12 Arend, A. and Beck, R., International Law and the Use of Force, London: Routledge, 1993. 13 Bain, W., ‘The Political Theory of Trusteeship and the Twilight of International Equality’, International Relations, vol. 17, no. 1, 2003, p. 63. 14 See, Cunliffe, P., ‘Reconstructing Sovereignty, Deconstructing StateBuilding: The Question of Context’, this volume, pp. 50–69. 15 In particular the 1960 General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (1514). 16 Bain, W., ‘The Political Theory of Trusteeship and the Twilight of International Equality’, International Relations, vol. 17, no. 1, 2003, p. 66. 17 Robertson, G., Crimes Against Humanity: The Struggle for Global Justice, London: Penguin, 1999, p. 372. 18 Glennon, M., ‘The New Interventionism’, Foreign Affairs, vol. 78, no. 3, May/June, 1999, pp. 2–7. 19 Wilde, R., ‘Colonialism Redux? Territorial Administration by International Organizations, Colonial Echoes, and the Legitimacy of the “International” ’, this volume, pp. 29–49. 20 Bain, W., ‘The Political Theory of Trusteeship and the Twilight of International Equality’, International Relations, vol. 17, no. 1, 2003, p. 75. 21 Pupavac, V., ‘Witnessing the Demise of the Developing State: Problems for Humanitarian Advocacy’, this volume, pp. 89–106.

From intervention to administration 191 22 For an example of this with respects to Bosnia see Knaus, G. and Martin, F., ‘Travails of the European Raj’, Journal of Democracy, vol. 14, no. 3, July 2003, pp. 60–74. 23 See, Chandler, D., ‘The State-Building Dilemma: Good Governance or Democratic Government?’, this volume, pp. 70–88. 24 See, Caplan, R., ‘Who Guards the Guardians? International Accountability in Bosnia’; Chopra, J., ‘Building State-Failure in EastTimor’, Hehir, A., ‘UNMIK – Facilitating Kosovo’s Final Status or its Future Status?: Reconceptualising the Problem, Changing the Solution’, all this volume. 25 See Fukuyama, F. (ed.), Nation Building: Beyond Afghanistan and Iraq, Baltimore, ML: John Hopkins University Press, 2006.

Index

A Human Security Doctrine for Europe (report) 80 A More Secure World: Our Shared Responsibility (report) 79 accountability: horizontal 108, 112; public 109; vertical 108; see also Bosnia-Herzegovina (BiH), international accountability in Aegis Trust 90, 103 Afghanistan 9, 13, 15, 21, 25, 54, 58, 61–2, 66, 70, 103, 143–5, 160, 185–6, 189 Africa 5, 31, 62 Albania 21, 60, 126, 128, 130, 137–8 Alejandro Bendanˇa 75 Alkatiri, Mari 158 Al-Qaeda 1 Amnesty International 90, 112, 115 Annan, Kofi 79, 129 anthropological critique, of modernisation strategies 94–5 Ashcroft, B. 34 Ashdown, Lord Paddy 73–4, 76, 109, 118 Asian Development Bank (ADB) 157–8 Asian Tsunami 104 atomic warfare 53 At War’s End 74 Ayoob, M. 60 Badinter Commission 82 Bain, William 16, 23–4, 30, 84, 187–8; see international administration

Balkans 22, 32, 72, 81, 101, 129, 133–4, 140, 143 Bangalore 100 Baranja 36 BBC 111 Belarus 55 Belgium 92 Belgrade 130 Bellamy, A. 59 Blair, Tony 58–9, 80; see also Prime Minister Blair Blake, William 94 ‘blue sky’ documents 56 Body Shop 98 Bolton 100 Bonn Agreement (2001) 145 ‘Bonn Powers’ arrangement 132 Booth, Ken 53 Bosnia 19–20, 29–32, 38–9, 61, 63, 71–6, 89, 92, 101–2, 118–20, 132, 134–5, 138, 170, 177–8, 189; internal conflict in 36; international administrations in 81–2, 84; political parties of 73; political processes in 83; territorial outcomes of ITA projects 38–9 Bosnia-Herzegovina (BiH), international accountability in: concept of 108–10; deficit of 113–16; enhancement of 116–20; mechanisms of 110–13; Ombudsman institution of 116 Bosnian Constitutional Court 107, 116 Bosnianization, of OHR 119

194 Index Brcko 31, 113, 143, 149 Bremer, Paul 29, 32 British Institute for International Comparative Law (BIICL) 46 British Raj 30 Brussels 73, 82, 84 Bull, Hedley 51 Burke, Edmund 180 Burma 55 Bush, George, W. 50–51, 55, 58; see also President George Bush Cambodia 31, 36, 39, 143, 148–9, 160 Canada 50, 99 Caplan, Richard 16, 19, 30; see also Bosnia-Herzegovina (BiH), international accountability in Carson, Rachel 94 Cassese, Antonio 77 Chandler, David 17, 57–8, 61, 186, 189; concept of autonomy 59; international realm, pursuit of 58; see also state-building policy practices Chatterjee, D. 185 Chesterman, S. 63 Chesterman, Simon 63, 84 China 54, 56, 99 Chopra, Jarat 16, 19; see also East Timor, state-building process in Christian Aid 96 civil wars 125 Clausewitz 79 Clinton, Bill 59 Coalition Provisional Authority (CPA) administration, in Iraq 29–30, 32, 44 Collinwood, R.G. 173 Colombia 31 colonialism: and CPA in Iraq 29–30, 32; as a form of international territorial administration 30, 32, 34; illegitimate form 30, 34; state-generated 32, 41 Community Empowerment and Local Governance Project (CEP)

(East Timor) 148, 152, 157–8, 165 Congo 31, 36, 39 Conrad, Joseph 33 Contact Group 76 Cooper, Robert 54, 80–1 Cosgrove, Major-General Peter 162 Cosgrove, Peter 162 Costa, Lucas da 158–9 Council of the European Union 55 Covic, Dragan 178 Crimes of War: What the Public Should Know 77 Croatia 31, 36, 39, 112, 135, 147 Cuba 99 Cunliffe, Philip 16, 20, 187, 189; see state-building process Dachau 53 Darfur crisis 89, 102, 104, 179 Dayton peace agreement 38, 71, 82, 110–11, 113–15, 120, 177–8; Bosnian Constitution-Annex 4 of 114 Deutsche Welle 111 Dili 37, 148, 150, 152–4, 162 disinterested party 14 District Administrator (DA) 149, 155–6 District Advisory Council (East Timor) (DAC) 155–6, 159 District Field Officers (DFO) 152 Duffield, Mark 96 Dutroux, Marc 92 Eastern Slavonia 30–1, 36, 38 East Timor 22, 30–1, 63, 113, 119, 136, 161, 163–5, 170, 172, 177, 189; role of legitimate counsel authority 37–38; as trust territory 42 East Timor May Agreements 37 East Timor, state-building process in: approach of top-down authority 156; and community empowerment 157–9; development of district administration by UNTAET 148–51; disintegration of East

Index 195 Timor 143; factors detrimental to 144–5; popular representation in 154; recentralization process 151–4; role of Consultative Council (NCC) 155; UN sponsored statehood 145–8; see also state-building process East Timor Transitional Administration (ETTA) 156, 163 economic crime 77 Eide, Kai 131 Eide Report, on Kosovo status 130–3, 136 Epoka e Re (news paper) 128 ethnic-Albanians 128 ethnic cleaning 126 ethnic conflicts 125, 128 ethnic identity 77 Etzioni, Amitai 83 ‘EU/US/International Community’ coalition 132 Europe 13, 80, 82, 91 European Court of Human Rights 107 European Raj 84 European Stability Initiative (ESI) 30, 84, 112 European Union (EU) 36, 54–5, 80, 82, 101, 107, 111, 132–3, 185 European Union Administration of Mostar (EUAM) 31, 36, 47 European Union Force in Bosnia and Herzegovina (EUFOR) 110 ‘failed states’ 35 Federal Republic of Yugoslavia (FRY) 36, 47–8, 127 Foucault, M. 79 France 163 Free City of Danzig 31 Fukuyama, Francis 12, 50, 54, 63, 65, 83 Füredi, F. 58 G77 states 42 Gasset, Jose Ortega y 64 generic drugs 90 genocidal massacre, concept of 77

Genocide Watch 90 Germany 31, 55, 81–2 Glennon, M. 188 global freedom 55 globalisation 2–3, 9–11, 13–14, 53 ‘good governance’ 71, 73, 76, 81, 84 Gramsci, A. 18 Griffiths, G. 34 Growth, Oral Rehydration, Breastfeeding, Immunization (GOBI) 96 Guardian 30 Gusmão, Xanana 146, 154–5 Hague tribunal 77 Haiti 9, 143, 149 Harland, David 120 Hart, H.L.A 178 Hehir, Aidan 14, 19, 23, 184, 186, 188; see UNMIK, in facilitating Kosovo status Herzegovina 30–32, 71, 73, 170, 177–78; internal conflict in 36; territorial outcomes of ITA projects 38–9; see also Bosnia-Herzegovina (BiH), international accountability in High Representative (BiH) (HR) 107, 110, 115–19, 138 Hiroshima 53 Holkeri, Harry 129 Holocaust 53 Holsti, Kalevi 77 Holy Roman Empire, fall of 144 humanitarian advocacy 186–7; and contemporary politics of emergency 91–2; in developing countries 92–8; direction of 103–5; and human security model 98–102; rise of 89–91; work of British non-governmental organization (NGO) 90–1 humanitarian crises 90 humanitarian donations 89 humanitarian emergencies 92 human rights abuse 77 Human Rights Watch 112 ‘human security’ doctrines 80

196 Index Huntington, Samuel 18, 71–2; about ruling monarch 72; views of political autonomy 74–5 Hussein, Saddam 29 Ignatieff, Michael 62, 83 Implementation Force (Operation Joint Endeavour) UN force in BiH (IFOR) 114–15 international accountability 154; see Bosnia-Herzegovina (BiH), international accountability in international administration: legal relationship in 173–7; protection of human rights and fundamental freedoms in 177–81; vocabulary of 168–73 International Commission on the Balkans (ICB) 129, 133–5, 137–8, 140 International Criminal Court 102 International Crisis Group (ICG) 29, 112, 114 International Development Association (IDA) 148 International financial institution (IFI) 12 International Force in East Timor (INTERFET) 147, 162 International Institute for Democracy and Electoral Assistance 112 International Institute for Strategic Studies (IISS) 30 international law 40, 53, 62, 104, 117, 160 international legal authority: nature of 34–8; purpose of 38–40 International Monetary Fund 55 international officials, divided loyalties of 16 international organizations 40–1, 53, 57 international relations: asymmetrical sovereignty 187–8; present status 184–7 international territorial administration (ITA) 2, 15–16, 24, 30, 108–9, 113, 116; colonial paradigm of 30, 32;

legitimation strategy of projects under 34–41; liberal governance projects 39; policies associated with post-colonial missions 39; in post-colonial era 34; projects 31–2, 39; and the Trusteeship System 41–2 international terrorism 184 intra-state conflicts 125 Iraq 7, 13, 15, 21, 29–32, 36, 39, 44, 54, 58, 62, 70, 75–6, 81, 101, 103–4, 185–6, 189 Israeli–Palestinian conflict 55 Izetbegovic, Alija 116 Jackson, Robert 5, 17, 52 Jacques, Martin 53–4 Japan 81–2, 99 Joint Assessment Mission (JAM) 151 Kagan, Robert 54, 185 Kaldor, Mary 54, 77 Kapila, Mukesh 102 Keynesian economics 96 Knaus, Gerald 84 Kosovo 22, 31, 44, 75, 119, 149, 178; decentralization process in 151; Independent International Commission on 128; international administrations in 81–2, 84; NATO’s campaign in 126; Ombudsperson institution of 113, 174, 178; primary issue of 129–30; role of European Union 132, 134–5; see also UNMIK, in facilitating Kosovo status Kosovo Force (KFOR) 113, 115 Kosovo Liberation Army (KLA) 128–9 Kosovo war 61, 104 Kouchner, Bernard 139 Kurdistan 61 Kyrgyzstan 6 Laïdi, Zaki 61, 64, 102 Lasch, Christopher 64 La Selva, Samuel 179

Index 197 League of Nations 63, 117 legitimation strategy, of ITA projects: conforming to democratic standards 38–40; identity of administering actors 40–1; in the nature of international legal authority 34–8 Leticia 31 liberal democratic theory 76 liberal governance projects 39 Liberia 7, 9 Lithuania 31 Lyotard, Jean-Francois 64 Madison, James 107 ‘Make Poverty History’ 89 Mandates Commission 42 Marcuse, Herbert 94 Mari, Alkatiri 22, 158 Marker, Jamsheed 146 market democracy 64 Marlow, Charles 33–4, 41 Martin, Paul 50; see also Prime Minister Martin Matheson, M. 127, 136 May 1997 Presidential Decision Directive-56 process 149 Medecins Sans Frontieres (MSF) 89, 103 Mello, Sergio Vieira de 147, 159 Memel 31 Mertus, J. 127 Meurs, Wim 130, 132 Mill, John Stuart 179 Milosevic, Slobodan 138 Mission Implementation Plan (MIP) 118 Mogadishu 58 Monteiro, Antonio 147 Montenegro 31, 131, 134 Morris, William 94 Mostar 31, 36, 38–9, 149 Namibia 31, 143, 162 National Consultative Council (East Timor) (NCC) 155–6 National Council of Timorese Resistance (CNRT) 21, 146, 161–3

national sovereignty 53 neo-liberal economics 96 neo-liberalism 57 new wars, concept of 78 New York 58, 147, 150, 162 non-governmental organizations (NGOs) 19–20, 89, 108, 111–12, 154, 189; anti-development position of 94–5; debt-relief advocacy of 97–8; development of 93; role of, in humanitarian advocacy 103–5; in terms of sustainable development model 96–7; of United Kingdom 90–1; Western vs developing countries 100–1 non-state actors 53 non-Western states 78, 81 normative disassociation 33–4, 41–2 normative level states 40 normative thinking 167 North Atlantic Treaty Organization (NATO) 15, 36, 60–1, 107, 113–14, 125–6, 132, 137, 149, 185 Oakeshott, Michael 175, 180 Office of the High Representative (BiH) (OHR) 31, 36, 110–11, 113–14, 118–20 O’Halloran, P. 138 Olson, M. 4 Operation Allied Force 126 ‘Operation Clean Sweep’ campaign 146 Organization for Security and Co-operation in Europe (OSCE) 31, 36, 111, 120, 132 organized international community 15 Orton, Frank 120 Oxfam 89, 96, 100 Palestinian 29, 55 Palestinian self-determination 29 Paris, Roland 74–5 ‘participatory intervention’, concept of 23 ‘Patriot King’ 72

198 Index Paul Bremer 29 ‘Peacebuilding Commission’ 56 Peace Implementation Council (PIC) 107, 110–11, 118 Permanent Mandates Commission (PMC) 117 Phnom Penh 148 plenary UN administration arrangements 37 Political Order in Changing Societies (study) 71 political radicalism 94 Portugal 37, 42, 146–7 post-Cold War foreign policies 59 post-Renaissance European colonialism 29 Potemkin 62 power without responsibility, concept of 52, 57, 63–4 pre-Charter ‘Westphalian’ era 186 President George Bush 50–1, 55, 58 Prime Minister Blair 58, 80 Prime Minister Martin 50 Princess Diana 92 Pristina 130 Pupavac, Vanessa 16, 19–20, 23, 189; see humanitarian advocacy ‘quasi-states’ 5, 8 Radio France lnternationale 111 Rambouillet 61 Rato, Rodrigo de 55 Refugees International 112 RENETIL group 163 Reno, W. 8 Richardson, Henry 35 ‘right of intervention’, concept of 56 Robertson, G. 187 Robinson, Neil 6, 8, 10, 12, 14, 16, 18, 20, 22, 24 Roman law 173 Rotberg, R.I. 6 Rueschemeyer, D. 13 rule of law 56, 70, 74 ruling monarch 72 Rwanda 9, 102, 125, 185; genocide in 59

Saar Basin 31, 117 Saddam Hussein 29 Sahrawi self-determination 29 Said, Edward 29 Save the Children campaign 89 Schama, Simon 33 Scheid, D. 185 Schumacher, E.F. 95 self-determination consultation 37–8 Selva, Samuel La 179 Sen, Hun 160 Serbia 60, 112, 126 shared sovereignty 134, 138 Shaw, Martin 77 Short, Claire 32 Silent Spring 94 Small is Beautiful 95 Solana, Javier 55, 80 Somalia 7, 9, 21, 31, 36–9, 61, 125, 143–4, 149, 156, 161 ‘sovereign authority’ 35–6 Soviet Union 58–9, 91; geopolitical divide with United States 70 Special Representative (Kosovo) (SR) 127, 129, 138–9 Stabilisation Force (BiH) (SFOR) 107, 110, 114–15 Stability Pact or Peace Implementation Council 76 state-building policy practices: contemporary approaches 71, 81–84; critical approaches by theorising security 79–81; military intervention 76–9; role of political institutions 71–6; see also state-building process state-building process: consensus in 55; contemporary agenda for 2–3, see also weak states; developing state strength 57; historical specificity of 52–6; humanitarian intervention in 57–8, 62; and human rights 59–60; the institution of trusteeship 63; and international rule of law 56; post-interregnum period 53–6; in relation to post-Westphalian politics 52; role of participatory

Index 199 intervention 159–65; in terms of realpolitik 61; see also East Timor, state-building process in; state-building policy practices Stiglitz, Joseph 118 SWAPO 162 Sweden 112 Tajikistan 100 territorial sovereignty 34, 37, 41 terror attacks 54, 57, 70 The Revolt of the Masses 64 The Selfish Altruist 104 The Washington Times 51 Third World First 89 Third World nationalism 93 Thucydides 181 Tiffin, H. 34 Timor Leste 63 Tisdall, Simon 55 Tokyo 100 Tower of Babel 181 Treaty of Westphalia (1648) 144 trust: concept of 30; as sacred 63, 145 trusteeship in international society, idea of 30, 188 Trust Fund for East Timor (TFET) 148 ‘Trust territory’ 34 Ugresic, Dubravka 92 UN Interim Administration Mission in Kosovo (UNMIK) 21–2, 31, 36, 38, 109, 113, 115, 125–30, 132–3, 136–9, 172, 174, 176–8; see also UNMIK, in facilitating Kosovo status United Kingdom (UK) 30, 32 United Nations (UN) 14, 23, 40, 42, 44, 56, 62, 70, 72, 78–9, 81, 83, 99, 101–2, 109, 113–14, 117, 125–7, 131–3, 136, 139, 143–52, 156–8, 161–5, 172, 184–5, 188; Campaign Against Hunger 93; Charter 98, 100, 104; Declaration on a New International Economic Order 95; non-national character of 16; role of 16

United Nations Development Programme (UNDP) 99 United Nations Mission in East Timor (UNAMET) 31, 36–8, 146–7, 152–3, 161 United Nations Operation in the Congo (Opération des Nations Unies au Congo) (ONUC) 31, 36 United Nations Operation in Somalia (UNOSOM) 31, 36, 38 United Nations Temporary Executive Authority (UNTAE) 31, 36 United Nations Transitional Authority in Cambodia (UNTAC) 31, 36 United Nations Trusteeship system 41, 117 United States 8, 61, 70, 80, 111–12, 184–5 UNMIK, in facilitating Kosovo status 172; Eide report on 130–3, 136; changing focus of mission 137–9; establishment and role 126–8; future status of UN in Kosovo 135–7; role of European Union 133–5; Standards before Status policy 129, 131, 135; status, standards and stasis 128–30 UN Security Council 62, 101; resolutions 34, 36, 104, 126, 134, 147, 177 UN Transitional Administration in Eastern Slavonia Baranja and Western Sirmiun (UNTAES) 31, 36, 38 UN Transitional Administration in East Timor (UNTAET) 21, 31, 37–8, 42, 113, 147–62, 164 UN Trusteeship Council 84 UN Volunteer (UNV) 152–3 UN’s East Timor Trust Fund 151 US Army Peacekeeping Institute 149 US Committee for Refugees 112 US-led Iraq occupation 76 USSR 8–9

200 Index Vaux, Tony 104 Venice Commission 109 Versailles restrictions, on sovereignty 82 Vienna Convention, on Diplomatic Relations 115 Washington 72, 149 Washington consensus 52, 57 weak states 3–5, 97; dangers of 57; problematic nature of 7–10; spread and varieties of 5–7; universal solution to 10–14 Weiss, Stefani 130, 132 Weiss, T.G. 62 Weissman, Fabrice 103 Welsh, Jennifer 57, 60 Western anti-poverty campaigns 97 Westendorp, Carlos 72 Western polity, malaise of 58, 62 Western Sahara 31, 35, 45

Western Sirmium 36 West Iria 31, 36, 39 Westphalia 10, 17, 50, 52–3, 57, 142, 144, 169, 184, 186 Westphalian model, of international intervention 142 Wheeler, N. 60 Wilde, Ralph 15–16, 188; see colonialism; international territorial administration (ITA) Wolfensohn, James D. 157 Woodward, Susan 61 World Bank 111, 119, 148, 157 World Bank Joint Assessment Mission (JAM) 151 World Trade Centre attack 92 Yugoslavia 9, 15, 31, 36, 60, 82, 102, 127, 129, 185 Zimbabwe 6, 9, 55 Didek, Slavoj 60