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Legal aspects of Australia's involvement in the International Force for East Timor

Published online by Cambridge University Press:  19 April 2010

Michael J. Kelly ,
Timothy L. H. McCormack ,
Paul Muggleton  and
Bruce M. Oswald
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Type
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International Review of the Red Cross , Volume 83 , Issue 841: Asie et droit international humanitaire/Asia and international humanitarian law , March 2001 , pp. 101 - 139
Copyright
Copyright © International Committee of the Red Cross 2001

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References

1 UN Security Council Resolution 1264, UN Doc. S/RES/1264 (15 September 1999).

2 At the height of ADF involvement in Vietnam, in excess of 8,000 Australian personnel were deployed. Over a 10-year period up to 1972, more than 60,000 Australians served in Vietnam.

3 SC Res. 1244 (1999) establishing KFOR and authorizing its deployment into Kosovo expressly recognized the sovereignty of the Federal Republic of Yugoslavia over Kosovo.

4 See, for example, GA Res. 348s(XXX) of 12 December 1975, 31/53 of 1 December 1976, 32/34 of 28 November 1982, and SC Res. 384 (1975) and 389 (1976).

5 See Australian Yearbook of International Law, Vol. 8, 1978–1980, pp. 281–282, for extrcts of speeches by the Australian Foreign Minister on Australia's de jure recognition of Indonesia's incorporation of East Timor. The recent public release of Australian government documents in relation to the Indonesian invasion and subsequent purported annexation of East Timor reveal more details of the government's thinking on the question of the extension of recognition to Indonesia's incorporation of East Timor. See “Recognition by Australia of Indonesian Incorporation of East Timor — Submission to the Foreign Minister”, Department of Foreign Affairs and Trade, Australia and the Indonesian Incorporation of Portuguese Timor 1974–1976, Documents on Australian Foreign Policy (2000), pp. 839–40.Google Scholar

6 Based on a contribution by Mark S. Martins, East Timor: General Background, JAG Document Library, accessible at <http://www.jagnet.army.mil/jagnet>.

7 SC Res. 1246, UN Doc. S/RES/1246 (15 June 1999).

8 Ibid.

9 The Weekend Australian, 11–12 September 1999, p. 2.

10 Report of the UN Secretary-General on the Situation in East Timor, UN Doc. S/1999/1024 (4 October 1999).

11 UN Doc. S/RES/1264 (15 September 1999).

12 Op. cit. (note 10).

13 SC Res. 1272, UN Doc. S/RES/1272 (24 October 1999).

14 Unless otherwise indicated, Colonel Mark Kelly, the inaugural Chief of Staff HQ INTERFET, provided the information contained in this section in a presentation to the ADF's Operations Law Course, RAAF Base Williamtown, 11 May 2000.

15 See supra note 4 for UN resolutions regarding Indonesian sovereignty.

16 This was, for example, New Zealand's view as reported in the written comments of LTCOL LP. Maybee, Command Legal Officer, HQ Land Command, NZDF, presented to the ADF «INTERFET Lessons Learnt Conference», Australian Defence Force Academy, Canberra, 17 March 2000. Transcript on file with the authors.

17 See section “Cross-border issues”.

18 The New Zealand position was different in relation to the application of the law of armed conflict. New Zealand Defence Force (NZDF) policy is to apply the fundamental principles and rules ofthat law to all its operations, whether strictly required by law or not. The NZDF view is that the demarcation between the application or non-application of the law of armed conflict is not clear-cut. Parts continue to apply, even where no armed conflict exists. The NZDF position is that the UN Secretary General's Bulletin of 12 August 1999 is intended to apply to all UN Peace Operations and that INTERFET, a UN-man-dated force deriving its legal authority from UNSCR 1264, was required to give effect to the Secretary General's Bulletin during its operations. The ADF position, by contrast, is that the Secretary-General's Bulletin did not apply to INTERFET, as the Bulletin only applies to UN-commanded forces or to peace-enforcement or peacekeeping operations where UN forces are a party to a conflict.

19 Comments by LTCOL Kelly, Directorate of International and Operations Law, Defence Legal Office, “INTERFET Lessons Learnt Conference”, loc. cit. (note 16), transcript, p. 134.Google Scholar

20 Michael J. Kelly strongly advocated the application of the law of military occupation to the presence of the multinational force in Somalia. See Kelly, Michael J., Peace Operations: Tackling the Legal and Policy Challenges, Canberra, 1997.Google Scholar That law was in fact applied by the ADF in Somalia to good effect. This interpretation of the law was subsequently asserted by Australia at the Meeting of Experts on the Fourth Geneva Convention of 1949 in Geneva in October 1998. Guidelines on the application of this approach have also been promulgated as Defence Legal Office policy.

21 Comments by LCDR Stephens, Legal Officer, INTERFET Naval Component Command, SQNLDR Harvey, Legal Officer, Air Command, and LCDR Rogers, Legal Officer, Naval Command,“INTERFET Lessons Learnt Conference”, loc. cit. (note 16), transcript, pp. 96–99.

22 Comments of LCDR Stephens, ibid., p. 96.

23 Comments of LTCOL Braban, Senior Legal Adviser, HQ INTERFET, ibid., p. 95.

24 Comments of CMDR Letts, Naval Command, ibid., p. 98.

25 Written comments of LTCOL Maybee, ibid.

26 SC Res. 1264 (1999), para. 3.

27 Written comments by LTCOL Maybee, “INTERFET Lessons Learnt Conference”, loc. cit. (note 16).

28 One interesting aspect of the discussion that took place concerning the use of the emblem was that the unit concerned would have preferred to keep the .50 calibre weapon and remove the emblem if required. The unit believed that the protection offered by the weapon was greater than that provided by the red cross emblem in an operational environment in which the militia had already demonstrated their lack of respect for the emblem. Comment by LTCOL Abbott, Chief Legal Officer Land Command and for a period a legal officer, INTERFET Combined Legal Office, “INTER-FET Lessons Learnt Conference”, loc. cit. (note 16), transcript, p. 136Google Scholar, and a communication from CAPT Bridley to LTCOL Abbott of 9/10/99.

29 Comments of LTCOL Kelly regarding past ADF land forces’ practice, and MAJ Worswick, Legal Officer, HQ Force Logistic Support Group, INTERFET, regarding medical personnel of l Field Hospital in East Timor, “INTERFET Lessons Learnt Conference”, loc. cit. (note 16), transcript, pp. 142–143.

30 Comments of LTCOL Kelly, ibid., p. 139.

31 Ibid.

32 It is noted that New Zealand's position was that .50 calibre weapons were not permitted on armoured ambulances bearing the red cross emblem. Written submission of LTCOL Maybee, ibid.

33 Comment by LTCOL Braban, Senior Legal Adviser, HQINTERFET, “INTERFET Lessons Learnt Conference”, loc. cit. (note 16).

34 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J Reports 1986, p. 14. The Court reached its judgment on the basis of the application of customary international law on the use of force rather than on the basis of UN Charter provisions. It did so because it considered itself precluded from applying the UN Charter by virtue of the United States’ “Vandenberg reservation” to its declaration accepting the compulsory jurisdiction of the Court. See Charlesworth, H., “Customary international law and the Nicaragua Case”, Australian Yearbook of International Law, Vol. 11, 1984–1987, p. 17.Google Scholar

35 Nicaragua case, ibid., p. 103, para. 195.

36 Ibid.

37 The expression “crime against humanity” rather than “war crimes” has been preferred to avoid the controversies of whether or not the acts in question in East Timor occurred in the context of an armed conflict. A “crime against humanity” means certain acts, including murder, rape, deportation or forcible transfer, committed as part of a widespread or systematic attack directed against the civilian population. For the most comprehensive treaty definition of the crime see Article 7 of the Rome Statute of the International Criminal Court.

38 Preamble to SC Res. 1264 (1999).

39 At the time of INTERFET's arrival in East Timor, CIVPOL had only two members on the ground. MAJ Freeman, Legal Officer, INTERFET Combined Legal Office, “INTERFET Lessons Learnt Conference”, be. cit. (note 16), transcript, p. 118.

40 This structure was suggested in a written submission by MAJO'Kane, SO2 Legal, HQ WESTFOR, “INTERFET Lessons Learnt Conference”, op. cit. (note 16).

41 See, for example, the US document titled “Operations Decisive Endeavour (Bosnia) Commander's Guidance on the Use of Force”, US Operational Law Handbook, International and Operational Law Department, The Judge Advocate General's School, 1996, pp. 8–13, which provides for the defence of “property with designated special status”. It should also be noted that UN forces have also been authorized to use force to protect property since at least the deployment of UN forces to Cyprus (UNFICYP). In Cyprus UN forces were permitted to defend UN “… posts, premises and vehicles that are under armed attack” (UN Doc. S/5653 (11 April 1964), para. 18(b)). In relation to the deployment of UN forces to Rwanda (UNAMIR), the Security Council authorized the use of force to “protect the means of delivery and distribution of humanitarian relief”, UN Doc. S/RES/918 (17 May 1994), para. 4.

42 Attorney-General's Department Advice dated 3 May 1998 and Defence Legal Office Brief entitled “The Use of Force in Defence of Mission Essential Property”.

43 The Crimes (Overseas) Act 1964, for example, which extends ordinary criminal jurisdiction to Australian citizens serving with the UN, does not apply to members of the Defence Force.

44 The Use of Force in Defence of Mission Essential Property, op. cit. (note 42).

45 For example, it was reported on 22 September 1999 that INTERFET had “arrested eight East Timorese — including members of the militia — for carrying weapons in the capital Dili”. Max Blenkin and John Martinkus, “Militia disarmed: Peacekeepers arrest eight”, The Daily Telegraph, 22 September 1999. P. 3.

46 On 4 October 1999, the UN Secretary-General reported: “The Indonesian police…appear to have withdrawn from [East Timor]. In Dili, there is a token presence of 12 persons, comprising senior officers, investigators and basic administrative staff…. The Indonesian police have confirmed that the judicial and detention systems are not operating. With regard to detainees, the multinational force has established basic, short-term legal and practical provisions for preventive detention, in consultation with UNAMET and the International Committee of the Red Cross (ICRC)”. Op. cit. (note 10), para. 13.

47 With a view to emphasizing the independent nature of the review, the Reviewing Authority was selected from the Australian Judge Advocates’ Panel established under the Australian Defence Force Discipline Act 1982. The Judge Advocates’ Panel is made up of officers who have been enrolled as legal practitioners in Australia for not less than five years. These officers are nominated by the Judge Advocate General and appointed to the panel by either the Chief of the Defence Force or a service chief. Members ofthat panel exercise their judicial functions unfettered by command direction.

48 Kelly, Michael J., “Responsibility for public security in peace operations”, in Durham, Helen and McCormack, Timothy L. H. (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law, The Hague/London/Boston, 1999, p. 151.Google Scholar

49 Report of the UN Secretary-General, United Nations Emergency Force: Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc. A/3943 (9 October 1958), para. 165.

50 Op. cit. (note 10), paras 32, 53–56.

51 Regulation No. 1999/1 (27 November 1999). Section 3. The mandate given to UNTAET, in broad terms, is to administer East Timor by exercising “… all legislative and executive authority, including the administration of justice”, SC Res. 1272, UN Doc. S/RES/1272 (25 October 1999), para. 1.

52 Ordinance clause 7. This provision permitted INTERFET some flexibility to administer detainees within operational constraints. For example, it was recognized that, while INTERFET would make every effort to ensure that detainees were delivered to the FDC within 24 hours of detention, this was not always possible to achieve because transport assets were often required for other more urgent operational tasks. Any non-compliance with the Ordinance would have to be justified.

53 Ordinance clause 3.

54 Members of INTERFET were not dealt with by the Detainee Ordinance. In accordance with general principles of privileges and immunities accorded to military forces, members of INTERFET alleged to have committed offences were dealt with under their national laws.

55 A voluntary detainee was defined as a person held at the FDC at that person's own request (Ordinance clause 1). There was at least one voluntary detainee held in the FDC. The notion of voluntary detention, which was also based on the Fourth Geneva Convention (see for example Article 42(2)), allowed a person at his/her own request to seek INTERFET protection where the person believed that his/her security may be threatened by hostile actions committed by the public.

56 Ordinance clause 12.

57 The Ordinance defined serious offence as an offence against certain chapters of the Indonesian Penal Code – essentially offences attracting a maximum sentence on conviction of more than five years (Ordinance clause 1). Examples of serious offences included: murder, manslaughter, grievous bodily harm, rape, possession of a weapon with intent to injure, carrying a weapon with criminal intent, causing an explosion likely to endanger life or property, kidnapping or looting.

58 Article 78 and Section IV.

59 Situation of Human Rights in East Timor, Report to the UN Secretary-General of the Joint Mission to East Timor undertaken by the Special Rapporteur of the Commission of Human Rights on Extrajudicial, Summary or Arbitrary Executions, Ms Asma Jahangir, the Special Rapporteur of the Commission on the Question of Torture, Sir Nigel Rodley, and the Special Rapporteur of the Commission on Violence Against Women — Its Causes and Consequences, Ms Radhika Coomaraswamy. UN Doc. A/54/660 (10 December 1999), para. 64.

60 See, for example, the Fourth Geneva Convention, Article 76.

61 Order 10.

62 Orders 3–6.

63 Orders 21 and 22.

64 Orders 2.

65 Orders 23–26.

66 Order 7.

67 Orders 11–16. Provisions were made for detaining men and women in separate quarters, and for the detention of persons under the age of 18.

68 Order 16.

69 Order 17.

70 Order 18.

71 Order 19.

72 Orders 23–26, and 27.

73 Orders 23–26, and 29.

74 Excluding locally recruited personnel to the extent that they were not carrying out clerical and administrative tasks for the purposes of INTERFET.

75 UN Doc. S/RES/1272 (25 October 1999), para. 9.