East Timor had been a Portuguese colony. During the post-Second World War decolonisation period, Portugal was unwilling to forgo its power completely on the half-island entity. In 1960 the UN General Assembly declared East Timor to be a non-self-governing territory, administered by Portugal,29and this was generally the case as East Timor was looking towards complete independence. This process was abruptly interrupted, however, when on 7 December 1975 the territory was invaded and subsequently occupied by Indonesian armed forces. During the 24 year occupation of the half-island, there were frequent reports of extreme brutality and genocide, but the Indonesian Government remained in power essentially because its purchase of military material from western States helped to silence its critics before international fora. After conclusion of a ‘General Agreement’ between Indonesia and Portugal on 5 May 1999 on the question of East Timor, a referendum was held on 30 August 1999.30This, although supervised by a UN body, UNAMET, was conducted in the midst of intimidation and violence by East Timorese militias with the full support of the Indonesian Armed Forces, and 78.5% of the population voted in favour of independence. The widespread violence sparked by the election result prompted the Security Council to adopt Resolution 1264 by which it mandated an international force (INTERFET) to restore peace and security in East Timor, facilitate humanitarian assistance and protect and support UNAMET in the fulfilment of its duties.31The presence of INTERFET secured significant stability on the island, and paved the way for the Council to establish the UN Transitional Administration in East Timor (UNTAET), through Resolution 1272,32headed by a Special Representative of the Secretary General who acts as Transitional Administrator of the Territory, until complete devolution to the people of East Timor is secured.
26 Ibid,Art 14(1). In accordance with Art 14(2) the judges may amend or adopt additional rules where the applicable rules do not adequately provide for a specific situation.
27 Ibid,Art 20(3).
28 Op cit, Report of the Secretary General,note 7, para 71.
29 GA Res 1542(XV) (15 Dec 1960).
30 UN DocS/1999/513, AnnexI.
31 SC Res 1264 (15 Sep 1999), operative para 3.
32 SC Res 1272 (25 Oct 1999).
A significant function of UNTAET’s mandate was the establishment of an effective judicial system, which includes the administration of criminal justice. This was no easy task, as prior to 1999 the East Timorese as a general rule were excluded from public office or the civil service. Further compounded by the fact that 500,000 civilians became internally displaced as a result of the 1999 events, there was no effective local judiciary on the island.33Moreover, under such circumstances, it would have been logistically impossible to prosecute offences that occurred during the 24 year Indonesian occupation, even if an ad hoc tribunal of the ICTY type was to be set up.
A UN Commission of Inquiry, specifically established for this purpose, concluded that an international tribunal should be set up, comprising both Indonesian and East Timorese judges, but precluded the examination of cases referring to the period of Indonesian occupation.34UNTAET, however, urged in part by Indonesian promises that they would investigate and prosecute alleged offenders, decided to enhance the local judicial system, albeit augmented with an international presence. This development was not welcomed by the East Timorese, in part because they allege they were not sufficiently consulted on this issue.35
Finally, UNTAET established the Serious Crimes Project, for the prosecution of serious criminal cases perpetrated in the period between 1 January and 25 October 1999, through the District Court of Dili. On the basis of its authority to adopt legislation, it promulgated Regulation 2000/11,36s 10.1 of which gave the District Court exclusive jurisdiction over the following offences: genocide, war crimes, crimes against humanity, murder, sexual offences, torture. Section 10.3 envisaged the creation of Special Panels composed of East Timorese and international judges. The final composition of the Panels was elaborated through Regulation 2000/15,37s 22.2 of which requires that the Panels be composed of two international and one East Timorese judge, whereas in cases of special gravity or importance, it may be composed of three international and two local judges. The judgments of the Panels can be appealed to the Court of Appeal.
Interestingly, s 10.4 of Regulation 2000/11 did not rule out the creation of a possiblead hocor other tribunal with jurisdiction over the same offences.
Section 2.1 of Regulation 2000/15 endowed the Special Panels with a species of
‘universal jurisdiction’ over the listed offences (although that term was not expressly used), the correct interpretation of which would encompass any crimes irrespective of the nationality of the offender or the victim, as long as the relevant offence was either consummated or commenced on the territory of East Timor. In accordance with s 2.4, the Panels do have jurisdiction over offences that occurred in East Timor prior to 25 October 1999, which would cover the period during the Indonesian occupation, but the applicable law for that period would be whatever Indonesian criminal law existed during the relevant time. This is consistent with the principle
33 For an overview of the problems facing UNTAET, see H Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, 95AJIL(2001), 46.
34 Report of the International Commission of Inquiry on East Timor to the Secretary General,UN Doc A/54/
726, S/2000/59 (2000), para 153.
35 S Linton, ‘New Approaches to International Justice in Cambodia and East Timor’, 84IRRC(2002), 93, p 106.
36 UNTAET/REG/2000/11 (6 March 2000), on the organisation of courts in East Timor.
37 UNTAET/REG/2000/15 (6 June 2000), on the establishment of panels with exclusive jurisdiction over serious criminal offences.
of inter-temporal law, which may demonstrate that the concept of grave breaches and the prohibition of genocide and crimes against humanity were binding upon Indonesia during relevant parts of its occupation of the island. The definition of the offences is almost identical to definitions encountered in other international legal texts. Hence, s 4 of Regulation 2000/15 adopts the customary definition of genocide codified by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and the ICC Statute. Section 5.1 reproduces the definition of crimes against humanity found in the ICC Statute, with the sole difference that both the punishable act and the widespread and systematic attack must be directed against the civilian population. Section 6.1 on war crimes once again mirrors Art 8 of the ICC Statute. The fact that no distinction is made with regard to the international or non-international character of the conflict implies either that the matter was left to be decided by the Panels, or that the formulation of Art 8 of the ICC Statute represents generally accepted law on war crimes.38The definition of the crime of torture in s 7.1 is wider than that found in the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, since it does not limit the commission of the offence to public officials or other persons acting in an official capacity. This may be due to the fact that many of the offences charged were committed by militias whose links with the Indonesian State authorities were not sufficiently clear for the purposes of attributing them to the Jakarta regime.39 As for murder40and sexual offences,41Regulation 2000/15 states that the ‘provisions of the applicable Penal Code in East Timor’ will apply.42
As expected, the functioning of the Panels has generated significant problems.
First, despite the existence of a Memorandum of Understanding between UNTAET and Indonesia, signed on 5 April 2000, by which the latter agreed to provide,inter alia,transfer of accused to the Special Panels, has not been adhered to. The second point of frustration relates to the perceived impartiality of the Panels. In one of the first judgments rendered by the Panels, theLos Paloscase,43it was accepted that the existence of an extensive attack by ‘pro-autonomy armed groups supported by Indonesian authorities targeting the civilian population in the area…had been proven beyond reasonable doubt’.44The Panel’s reasoning was based on the report of the UN Commission of Inquiry, as well as certain witness testimonies and physical evidence supported by the Commission’s findings. However, before reaching this conclusion, the Panel examined the possible existence of an armed conflict in East Timor during 1999, wrongly assuming the requirement of a nexus between the crimes under consideration and an armed conflict.45No such nexus is required in Regulation
38 See D Turns, ‘“Internationalised” or Ad Hoc Justice for International Criminal Law in a Time of Transition: The Cases of East Timor, Kosovo, Sierra Leone and Cambodia’, 7ARIEL(2002).
39 Ibid.
40 Section 8.
41 Section 9.
42 UNTAET/REG/1999/1, s 3 provides that the applicable law in East Timor is that in force before 25 October 1999 (ie, Indonesia of law), as long as such law does not conflict with international human rights law, the mandate or other UNTAET Regulations.
43 Prosecutor v Joni Marques and Others(Los Paloscase), Judgment (11 December 2001), Case No 09/
2000.
44 Ibid,para 686.
45 Ibid,para 684.
2000/15, nor international law in general, except for in the ICTY Statute, which in any event is irrelevant for the purposes of the Special Panels, because Regulation 2000/15 is premised on the ICC Statute. The judgment was flawed in some other respects, such as the omission of the fact that East Timor was occupied by Indonesia, and that alone is enough under common Art 2 of the 1949 Geneva Conventions to substantiate the existence of an armed conflict. Moreover, in theLekicase, which did not involve crimes against humanity, the Panel made findings about Indonesia’s role in the 1999 events, without any evidence submitted by the parties, and without the issues being litigated, by relying on a test of ‘what even the humblest and most candid man in the world can assess’.46If such mistakes can be forgiven to the inexperienced East Timorese judiciary, it is difficult to do the same with regard to internationally appointed judges.