Legal aspects of Australia's involvement in the International Force for East Timor
31-03-2001 Article, International Review of the Red Cross, No. 841, by Michael J. Kelly, Timothy L. H. McCormack, Paul Muggleton, Bruce M. Oswald
Lieutenant Colonel Michael Kelly AM is Director of the Military Law Centre in the ADF Legal Office. Tim McCormack is the Foundation Australian Red Cross Professor of International Humanitarian Law at the University of Melbourne. Lieutenant Colonel Paul Muggleton serves in the ADF Military Law Centre. Major Bruce Oswald CSC is the Deputy Director of Operations and International Law, ADF Legal Office. He was deployed as Visiting Officer for INTERFET’s Detention Management Unit in East Timor. — The views expressed in this article do not necessarily reflect those of the Australian government.
Between 20 September 1999 and 21 February 2000, a multinational force under unified command, with Australia as the lead nation, deployed to East Timor under the authority of the United Nations Security Council [1 ] . The deployment of the multinational force, known as the International Force for East Timor (INTERFET), was prompted by a humanitarian crisis in East Timor resulting from a collapse in law and order. INTERFET was replaced on 23 February 2000 with a peacekeeping force under UN command forming part of the UN Transitional Authority in East Timor (UNTAET).
The deployment of the Australian Defence Force (ADF) to East Timor as the lead contingent for INTERFET posed many challenges to both ADF doctrine and capabilities. Involvement in INTERFET constituted the largest overseas deployment by the ADF since the Vietnam War [2 ] and occurred following a period of downsizing of the defence force accompanied by the assignment of civilians to many positions formerly occupied by military personnel. The complex operational and legal environments prevailing prior to and throughout the deployment magnified the challenges set by the size and timing of the operation.
Those with a role in creating the framework for the operation were numerous, including the de facto “host nation” Indonesia, the former colonial power Portugal, the United Nations itself, Australia as lead nation and all those nations actually or potentially contributing to the multinational force. It is noteworthy that no regional alliance equivalent to NATO existed to provide cohesion amongst troop-contributing nations. Consequently, ad hoc arrangements regarding command and control and other key issues were required. The overarching operational framework for the deployment was being determined at a time when the situation on the ground was both in crisis and constantly changing.
The controversial status of Indonesia’s authority in East Timor itself contributed to the complexity of the multinational deployment and distinguished it from peace operations such as that in Kosovo commencing in mid-1999 [3 ] . In a series of resolutions following the 1975 Indonesian invasion and subsequent purported annexation of East Timor, the UN Security Council and General Assembly rejected Indonesian claims of sovereignty over the terri tory [4 ] . Of the nations contributing troops to the multinational force, only the lead nation, Australia, had recognized the sovereignty of Indonesia over East Timor. Differing views on the status of Indonesia’s claims to East Timor had an effect on key issues such as the drafting of the framework documents for the deployment, and the determination of the law applicable in East Timor after the multinational force was deployed.
Despite these difficulties, INTERFET’s deployment has been hailed as an outstanding success. Clearly this success is attributable in large part to the commanders and troops involved on the ground in East Timor. However, we also assert here that, in part at least, that success is also due to the work of legal advisers at all levels who helped to deal with the many legal challenges that arose from the outset. In responding to those challenges there was often little precedent on which the legal officers could rely. The objective of this article is to identify and analyse the legal approach adopted to resolve some of the challenges encountered by INTERFET and, in so doing, to demonstrate the role of international law in the success of the operation. We begin with a contextual overview of the situation in East Timor prior to the deployment of INTERFET, before moving on to a series of specific legal issues.
The context for
The island of Timor, of which East Timor forms a part, has a history dominated by colonial occupation. The Portuguese first colonized it in 1520; it was thereafter subjected until 1860 to successive colonization attempts by the Spanish, Dutch and British. However, treaties in 1860 and 1893 affirmed Portuguese sovereignty over East Timor.
Although Japanese troops occupied Timor during the Second World War, after the cessation of hostilities East Timor reverted to Portuguese possession. But in 1975 Portugal signalled its intention to withdraw from East Timor. Subsequent internal and external negotiations concerning the future of East Timor were accompanied by a decline into civil war and the emergence of two main groups. One group, Uniao Democratica Tomorense , favoured some form of continued association with Portugal, whereas Frente Revolucionaria Timor Lest Independence (FRETILIN) supported complete independence. On 28 November 1975 FRETILIN issued a unilateral declaration of independence proclaiming the establishment of the “Democratic Republic of East Timor”. Other political groups in East Timor then issued a joint declaration of independence from Portugal in favour of integration with neighbouring Indonesia (which had sovereignty over West Timor following independence from The Netherlands).
On 7 December 1975 Indonesia invaded East Timor and seized control of it by force. Then on 17 July 1976 it annexed the region, proclaiming it to be its 27th province. The purported annexation of East Timor was never recognized by the United Nations but was recognized by Australia in 1979 [5 ] .
The Indonesian military presence in East Timor met with violent opposition by FRETILIN, which conducted a campaign of insurgency. The intensity of the violence varied but included saturation bombings by Indonesian forces and the constant ambushing of Indonesian ground forces by FRETILIN fighters. A cease-fire was attempted in 1983 but was short-lived. Indonesian military action was accompanied by attempts to integrate East Timor into Indonesia, for instance by the forced movement of the local civilian population and the resettlement of Indonesian farmers in East Timor. Bahasa Indonesia was imposed as the official language in schools and the education process included a focus on the Indonesian State ideology of Pancasila .
Although figures are uncertain, it is estimated that tens of thousands had died in the conflict in East Timor since 1975 and that there were several hundred “disappearances”. Allegations of human rights abuses by Indonesian authorities had declined after 1989 as the latter implemented a policy of “opening up” East Timor to outside scrutiny. A significant event occurred, however, on 12 November 1991 at the Santa Cruz cemetery in Dili. A parliamentary delegation from Portugal had been scheduled to arrive in East Timor on 4 November 1991. Pro-independence demonstrations had reportedly been planned. On 28 October 1991 two pro-independence activists who, with others, had been hiding in a church in Dili were shot and killed. The Portuguese delegation’s visit was postponed and a memorial mass and march to the Santa Cruz cemetery were organized for one of the dead activists. The security forces opened fire on the crowd, killing a number of people — ten protesters, according to official figures, but about 100 East Timorese, according to other reports.
Following international condemnation, the Indonesian government established a seven-person commission of inquiry. It found that up to fifty people may have been killed and that security forces had used excessive force in responding to civil unrest. Criminal charges were subsequently brought against protesters and army and police personnel involved. Human rights groups criticized the tria ls of protesters for not conforming to international standards or to Indonesia’s own Code of Criminal Procedure. Protesters were sentenced to between nine years’ and life imprisonment, whereas security personnel received sentences of eight to eighteen months.
On 20 November 1992 Jose Xanana Gusmao, the military commander of FRETILIN, was captured by Indonesian troops. He was tried for offences including rebellion and was sentenced to life imprisonment. His sentence was apparently commuted in August 1993 by order of the Indonesian President to 20 years’ imprisonment. During Gusmao’s incarceration it was reported that Konis Santana was responsible for the leadership of FRETILIN [6 ] .
In early 1999 the then Indonesian President B. J. Habibe unexpectedly announced a dramatic change in Indonesia’s policy regarding East Timor. A major element of that policy was a popular consultation, through a referendum to be held in East Timor, on the issue of integration with Indonesia. Three agreements were concluded on 5 May 1999 variously between Indonesia, Portugal and the United Nations, creating a framework for the resolution of East Timor’s future status. It was envisaged that the People’s Assembly would implement the results of the popular consultation in October 1999.
The UN established the United Nations Mission in East Timor (UNAMET) to organize and conduct the popular consultation in order to ascertain whether the people of East Timor accepted or rejected a constitutional framework proposed by Indonesia [7 ] . This framework provided for special autonomy for East Timor within the unitary Republic of Indonesia. President Habibe stated that the Indonesian government accepted that a vote against the proposal would be equivalent to a vote for independence for East Timor. The ballot was originally scheduled for 8 August 1999 [8 ] but eventually took place three weeks later on 30 Au gust.
On 4 September 1999 the UN announced the results of the ballot, namely, a 78.5 per cent vote against unity with Indonesia — effectively a 78.5 per cent vote for independence. President Habibe announced that he accepted the ballot outcome and directed Indonesian security forces to maintain order in East Timor. However, within hours of the announcement of the ballot results pro-integration militia went on a rampage in Dili and other towns in East Timor.
On 6 September 1999 Australia began evacuating its nationals in East Timor, where up to 150,000 civilians were already being displaced by the violence. On 7 September 1999 Indonesia imposed martial law in East Timor. From 8 to 12 September a UN Security Council mission travelled to Jakarta and Dili. On 10 September the UN began evacuating all but essential staff from East Timor. Australia announced that it was cancelling joint military exercises with Indonesia and that its general defence ties with Indonesia were under review. [9 ]
The Security Council mission reported that the violence in East Timor after the ballot could not have occurred without the involvement of large elements of the Indonesian military and police, concluding that the Indonesian authorities were either unwilling or unable to provide an environment for the peaceful implementation of the 5 May agreements. The mission also concluded that this situation had not altered with the imposition of martial law [10 ] . On 12 September 1999 the Indonesian government agreed to accept the assistance of the international community to restore peace and security in East Timor and to implement the result of the popular consultation. Thereafter the Security Council adopted Resolution 1264 on 15 September 1999 which says, inter alia ,
“Determining that the present situation in East Timor constitutes a threat to international peace and security; and Acting under Chapter VII of the Charter of the United Nations, Authorizes the establishment of a multinational force under a unified command structure (É) with the following tasks: to re-store peace and security in East Timor; to protect and support UNAMET in carrying out its tasks; and, within force capabilities, to facilitate humanitarian assistance operations; and Authorizes the States participating in the multinational force to take all necessary measures to fulfil this mandate.” [11 ]
The multinational force began its deployment to East Timor on 20 September 1999. At that stage the East Timorese infrastructure had been badly damaged. In Dili few buildings were still intact. The towns of Ainaro and Cassa had been completely destroyed, with an estimated 70 per cent of Atsabe, Gleno, Lospalus, Maliana, Manatuto and Oecus either burnt down or levelled. Extensive damage was also reported in Suai and Liquica. In Vineque about 20 per cent of the town had been destroyed, whereas Bacau was relatively undamaged. The judicial and detention systems were not operating and no commercial activity was being conducted. There was no effective administration, as administrative officials had apparently left the territory after the announcement of the ballot results.
In humanitarian terms, the situation in East Timor when the multinational force arrived there was one of crisis: a preliminary UN inter-agency assessment, issued on 27 September 1999, estimated that of a total pre-ballot population of 890,000, over 500,000 had been displaced by the violence, including 150,000 to West Timor.
By the time the multinational force had been deployed, the Indonesian armed forces still had significant numbers of personnel in East Timor — particularly in Dili. A contingent of Indonesian police remained in Dili with a substantial security detachment providing support. After consultations in New York and Dili, the Indonesian armed forces undertook to cooperate with the multinational force in the implementation of Resolution 1264 through a Joint Consultative Security Group established in Dili, with UNAMET participation [12 ] . On 24 September 1999 Indonesia lifted martial law and rapidly withdrew from the territory.
On 26 October 1999 the United Nations Transitional Authority (UNTAET) was established pursuant to Security Council Resolution 1272 [13 ] . INTERFET formally transferred its responsibilities under Resolution 1264 to UNTAET on 23 February 2000. UNTAET was given authority to “exercise all legislative and executive authority including the administration of justice”.
Australian Defence Forces Operations [14 ]
The Australian Defence Forces’ involvement in the multinational force in East Timor was entitled “Operation Stabilise”.
The broader ADF involvement in the East Timor deployment, including logistic support from the Australian support area, was called “Operation Warden”.
Operations Warden and Stabilise had been preceded by two other operations involving the ADF and related to East Timor. The first was “Operation Faber”, which took place in the period August-September 1999 and entailed the deployment of UN military observers in support of the UNAMET-monitored popular consultation. The second was “Operation Spitfire” and consisted of a Services-protected evacuation of 2,475 Australian and other nominated nationals from East Timor in the period 6-12 September 1999. Operation Spitfire was conducted by Joint Task Force 645 comprising the 3rd Battalion, the Special Air Service Regiment, 5 Aviation Regiment, Emergency Management Australia and C130 assets. Operation Spitfire also involved assistance in preparations for the deployment to East Timor of the multinational force during Operation Stabilise by prepositioning ADF assets in Darwin and at the RAAF Base at Tindal in the Northern Territory.
The International Force
INTERFET was established under unified command rather than UN command. Major General Peter Cosgrove, at the time the Commander of the ADF’s Deployable Joint Force Headquarters (DJFHQ) based in Brisbane, was designated Commander INTERFET (COMINTERFET). Headquarters INTERFET was formed by the DJFHQ with supplementary support from other contributing States. The ADF’s Headquarters 3 Brigade from Townsville provided the foundation for HQ Land Component Command later renamed HQ WESTFOR.
Although the figures varied throughout the INTERFET deployment, 22 contributing nations w ere represented in INTERFET with a total force strength of approximately 12,600. Australia provided the largest contingent of 5,521 ADF personnel.
The INTERFET concept of operations was for a four-phase operation with a preliminary phase involving preparation in Australia prior to deployment to East Timor. The four phases were as follows:
Phase 1 — Control: during this phase, INTERFET control was established over air and sea points of entry in Dili on 20 September 1999 and an air point of entry in Bacau on 23 September 1999;
Phase 2 — Consolidation: this phase occurred in the period September 1999 to January 2000 and involved INTERFET establishing and maintaining control progressively throughout East Timor, including the Oecussi enclave in West Timor and Atauro Island;
Phase 3 — Transition: INTERFET objectives were to hand over control of East Timor to UNTAET, having maintained security for three months without a serious incident, set up a border security management system, established an internally displaced persons (IDP) return plan and reduced the risk of militia activity. The transition from INTERFET to UNTAET took place progressively from east to west. Sector East was handed over on 1 February 2000, Sector Central, including Dili, on 14 February 2000, the Oecussi enclave on 15 February 2000 and Sector West on 21 February 2000;
Phase 4 — Redeployment: INTERFET formally handed over authority to UNTAET on 23 February 2000 with INTERFET troops either moving to the UNTAET command structure or redeploying to home locations.
ADF legal officer involvement
In the late 1990s, as a result of the comprehensive rationalization and reorganization of the Australian Defence Force through the Defence Review Plan, civilian and military legal support at the strategic level were amalgamated. As a result, the previously separate three service legal directorates and the civilian legal division were combined, under a military one-star officer. The newly created entity was named the “Defence Legal Office”. Following the amalgamation of these Canberra-based legal resources, the next stage in the rationalization of legal support to the ADF was the transfer of all legal officer positions in the ADF, regardless of service, to the control of the Defence Legal Office. A number of legal officers were then outposted to headquarters and units, generally on the basis of single-service specialization, i.e. with the exception of designated joint headquarters legal staff, legal officers at subordinate headquarters, formations and units were allocated in support of their parent service.
ADF legal officer support to INTERFET’s operations was controlled by the Defence Legal Office, although, as a general principle, outposted permanent legal officers automatically deployed to East Timor with the organization — headquarters, formation or unit — to which they had been assigned.
Australia-based legal officer support to the East Timor operation was significant. That support included: strategic-level ad-vice from the Defence Legal Office — particularly the Director-General, the General Counsel, the legal officers in the Directorate of Agreements and the Directorate of International and Operations Law, and the legal officer outposted to Strategic Command Division, Australian Defence HQ (AD HQ) ; legal officers within environmental commands, namely, Land, Special Forces, Maritime, and Air Commands; legal officers at HQ Australian Theatre (HQ AST) providing operational-level advice; legal officers at Headquarters Northern Command (HQ NORCOM) providing support at the rear support base and embarkation point in Darwin; and legal officers providing base support to units deploying to East Timor.
The following is a summary of ADF legal officer positions that deployed to East Timor during the INTERFET period:
Senior Legal Adviser, INTERFET Combined Legal Office (ICLO), HQ INTERFET (lieutenant colonel);
Two legal officers, ICLO, HQ INTERFET (ARA major/ lieutenant colonel), reserve lieutenant colonel;
Two legal officers HQ WESTFOR (one major and one captain);
One legal officer HQ Force Logistic Support Group (FLSG) (one major);
One legal officer Naval Component Command (one lieutenant commander);
Four legal officers Detention Management Unit (one colonel, one major, one squadron leader, one lieutenant).
Legal officer support to a complex operation without precedent for Australia, which acted for the first time ever as lead nation in a coalition for a peace operation, deserves special recognition. The creation of novel framework agreements involving difficult legal issues, the formulation of significant policies in a rapidly changing operational environment, the development and implementation of training packages, and other challenging legal requirements were all dealt with professionally and effect ively for the ultimate benefit of the INTERFET mission.
Application of international law to the operation
We have already noted the complex nature of the international law framework for the INTERFET deployment. Issues which had to be taken into consideration in this framework included: the sovereign rights, if any, of Indonesia over East Timor and the recognition, if any, by members of the INTERFET coalition of those rights; the residual rights, if any, of Portugal as the former colonial power; the effect of the de facto control of East Timor by Indonesia as recognized by the 5 May 1999 agreements between Indonesia, Portugal and the UN; the effect of the unilateral move by the People’s Consultative Assembly of Indonesia on 20 October 1999 to withdraw Indonesian claims of sovereignty over East Timor; and the effect of UN Security Council Resolutions 1264 and 1272.
The UN itself had not recognized Indonesian sovereignty over East Timor following the Indonesian invasion in 1975 and purported annexation on 17 July 1976, [15 ] nor did most individual States contributing troops to the INTERFET coalition. For the UN and these States, the status of East Timor at the time of the INTERFET deployment was that of a UN-designated non-self-governing territory [16 ] . The notable exception to this view was that of the coalition’s lead nation, Australia.
Notwithstanding the UN’s position regarding sovereignty, its acceptance of the reality of Indonesian control over East Timor was reflected in various framework documents such as the 5 May 1999 agreements between Indonesia, Portugal and the UN, and UN Security Council Resolution 1264 (1999) establishing INTERFET. Thus, although operative paragraph 3 of Resolution 1264 authorized “the States participating in the multinational force to take all n ecessary measures” to fulfil its mandate, other provisions envisaged a continuing, although temporary, role for Indonesia in East Timor. Paragraph 5, for example, underlined the government of Indonesia’s “continuing responsibility under the Agreements of 5 May 1999 (...) to maintain peace and security in the interim phase between the conclusion of the popular consultation and the start of the implementation of its result”.
The issue of the legal status of East Timor, and the recognition of at least de facto Indonesian control over the territory, had a direct impact on the framework documents produced by Australian authorities on behalf of INTERFET and the reaction of certain troop-contributing nations to that framework. This recognition of de facto Indonesian control also had an impact on other issues such as the approach taken by HQ INTERFET and the maritime contributing nations to navigational rights for the deployment. These issues will be examined further below.
The ADF concluded that the laws of armed conflict, including the 1949 Geneva Conventions and their 1977 Additional Protocols, did not, as a matter of law, apply to INTERFET as there was no armed conflict, international or non-international, on the territory of East Timor at the time of the deployment. The ADF view that no armed conflict existed in East Timor was based on the following reasoning. First, there was no armed conflict between Indonesian forces and INTERFET. INTERFET deployed with Indonesian consent and there was no exchange of military force between coalition troops and Indonesian military. The sole exception to this was an incident involving an exchange of gunfire near the village of Motaain. As is explained below [17 ] , this exchange occurred only as a result of ambiguity about the exact location of the border between East and West Timor. Secondly, INTERFET was not engaged in an armed con flict with the militia. There were several different militia groups which acted independently of each other and did not operate under a proper command structure. The ADF rarely engaged in an exchange of military force with militia members. Thirdly, the ADF view was that the militia were not engaged in an armed conflict with the people of East Timor. The militia failed to satisfy the criteria of an organized armed force, they did not control territory from which they could conduct sustained military operations and they were not fighting against an opposing force. Rather, they were perpetrating violent criminal acts against the civilian population of East Timor.
Some commentators have suggested that it is inaccurate to view the final phase of East Timor’s 25-year struggle in isolation from the protracted struggle which preceded it. Since 1975 FRETILIN has operated in East Timor as a highly organized militia, under clear lines of command, against the occupying military forces of Indonesia. The argument goes that the fact that FRETILIN opted to exercise incredible levels of restraint and not to engage militia in the post-ballot period ought not alter the reality of a protracted armed conflict in East Timor at the time of INTERFET’s deployment. Although this was not the approach taken by the ADF, it is the most valid case for the existence of an armed conflict in East Timor. [18 ]
However, consistent with ADF policy, the principles of the law of armed conflict were applied, where relevant, by way of guidelines [19 ] . The same approach was taken with respect to international human rights law. The rationale behind the ADF approach has consistently been that the key international humanitarian and human rights law instruments usually reflect best practice and that compliance with them, where relevant, is the appropriate expectation for force standards. Maintenance of the legitimacy of a peace operation is considered a key to mission success. We are not suggesting here that the lack of certainty about the law applicable to the INTERFET Operation created a lacunae in relation to the law applicable to the conduct of the troops deployed. In the case of ADF personnel, the Australian Defence Force Discipline Act 1982, applicable in relation to all ADF deployments, ensures that ADF troops are always subject to Australian Criminal Law irrespective of which international legal regime applies to the Operation itself. Other contributing nations have similar legislation.
The ADF has adopted a similar approach to the law of military occupation in its deployment on peace operations. The Australian position is that a UN-mandated force can be in at least de facto occupation of the area of operations. The INTERFET deployment drew extensively upon the law of occupation, for example for the establishment of an interim justice system. While it is the ADF view that the law of occupation does not require an armed conflict for it to apply de jure [20 ] , INTERFET forces were not occupying East Timor, because Indonesia had consented to their deployment. Here the law of military occupation provided a framework of guiding principles and did not apply de jure .
The legal framework
for the operation
Establishing the framework
As Australia was the lead nation for INTERFET, Australian authorities, in particular the Department of Defence, the Attorney-General’s Department and the Department of Foreign Affairs and Trade, assumed responsibility for the conception, drafting and negotiation of the framework documents. That responsibility normally falls to the UN Legal Adviser whenever an operation is commanded and controlled by the UN. These framework documents supplemented those created externally, such as the relevant Security Council resolutions and the agreements of 5 May 1999.
The following framework documents were adopted:
Exchange of Diplomatic Notes Constituting an Arrangement Between the Government of Australia and the Government of the Republic of Indonesia Concerning the Status of the Multinational Force in East Timor, which came into effect on 24 September 1999 and was known as the Status of Forces Arrangement (SOFA);
Exchange of Diplomatic Notes Constituting an Arrangement Between the Government of Australia and UNTAET, which applied to the activities of the multinational force operating under a unified command structure in East Timor (INTERFET) from 26 October 1999;
Agreement on Participation in INTERFET.
One further document was also envisaged as forming part of the strategic framework, namely a military technical agreement between INTERFET and the Indonesian authorities. A draft document entitled “Military Technical Arrangement for Security in East Timor” was prepared. The document covered issues such as the creation and operation of a Joint Security Consultative Group in Dili involving Indonesian and INTERFET officers, detainee handling and the delineation of the area of operations. The strongest advocates for this type of agreement for the INTERFET deployment and future operations were and are air and naval legal officers concerned about navigation issues [21 ] . Th ese issues recurred throughout the INTERFET deployment with, for example, agreement with the Indonesians eventually being obtained for an air route to the Oecussi enclave but not for the coordinates for a sea route [22 ] . It was originally anticipated that these particular freedom of movement issues could be addressed in the Status of Forces Arrangement, but for lack of agreement they were omitted from that instrument.
Although HQ INTERFET saw merit in the negotiation of a military technical agreement, political sensitivities in the bilateral relationship between Australia and Indonesia at the time of deployment precluded the negotiation of such an agreement at anything but the highest political levels. Any attempt to do otherwise could have jeopardized the informal negotiations that were taking place locally with, Indonesian authorities [23 ] . Ultimately, the decision was taken not even to push the negotiation at the highest political level and the idea of concluding a military technical agreement was abandoned.
One feature of the process leading to adoption of the framework documents was the lengthy amount of time taken to conduct the requisite negotiations. For example, the Status of Forces Arrangement was not finally agreed until 24 September 1999, four days after the arrival of INTERFET in East Timor. Some of the participation agreements were not concluded at all during the period of the INTERFET deployment! Here a pragmatic approach was taken by HQ INTERFET: to proceed on the basis that the model participation agreement was operative in respect of those contributing States not yet party to an agreement.
Difficulties experienced in reaching agreement with the Indonesian authorities on certain technical issues have prompted the suggestion that in future operations, rather than seek formal agreement by a process of negotiation, the mechanism of a unilateral declaration be employed in appropriate circumstances. The consent o f the other party would thereafter be assumed if that party did not object, i.e. after declaring the Australian position and intended course of action, operations would be conducted accordingly [24 ] . It is suggested that relevant circumstances for the use of this mechanism would be the strength of the UN mandate underpinning the operation.
Disparate approaches by coalition partners to the framework
We have already noted the complicating factor of Australia’s controversial position on Indonesia’s legal status in East Timor relative to other coalition partners’ views. New Zealand, for example, argued that the Status of Forces Agreement was a bilateral issue between Australia and Indonesia flowing from Australia’s recognition of Indonesian sovereignty over East Timor. It held that the SOFA did not bind New Zealand, which did not recognize that Indonesia had any sovereign rights regarding East Timor. The New Zealand position was that UNSC Resolution 1264 provided the legal authority for the INTERFET deployment to East Timor. Once New Zealand troops were deployed, the NZDF view was that NZDF forces were immune from the local jurisdiction and the enforcement of local laws on the basis of customary international law. It is true that, to date, UNTAET and Indonesia still have not concluded a SOFA and so New Zealand maintains that the status of UNTAET troops continues to be governed by customary international law. [25 ]
On the legal status and the relevance of the contributing nations the UN itself followed an approach of constructive engagement with Indonesia, acknowledging its de facto control of East Timor without prejudice to the question of East Timorese sovereignty. Despit e the New Zealand position on the irrelevance of the SOFA with Indonesia, it is unlikely that any State, including Australia, would have been prepared to enter East Timor on the basis of a Chapter VII mandate alone. This assertion is not related to a perception that a Chapter VII mandate would be an inadequate legal basis for intervention but arises from the reality that Indonesia had more than 20,000 troops on the ground in East Timor prior to its agreement to withdraw troops and permit INTERFET to be deployed.
Resolution 1264 itself, although authorizing resort to “all necessary measures” to fulfil the mandate [26 ] , envisages at least a temporary continuing involvement of Indonesia in East Timor and allows for subsequent cooperative agreements between INTERFET and Indonesia to be arranged. Specifically, operative paragraph 4 of Resolution 1264 welcomed “the expressed commitment of the Government of Indonesia to cooperate with the multinational force in all aspects of the implementation of its mandate” and anticipated “close coordination between the multinational force and the Government of Indonesia.”
We suggest that the Status of Forces Arrangement did not simply result from the unique view of Australia with regard to Indonesian sovereignty over East Timor. The instrument was consistent with the general approach of the UN towards Indonesia’s involvement in East Timor, it was consistent with the specific terms of Resolution 1264 and, from a purely pragmatic perspective, it was a mechanism that helped avoid difficulties with the Indonesian authorities on the ground. In fact, the UN itself negotiated a similar Status of Mission Agreement with Indonesia — an instrument which will be considered in more detail below.
Two other framework documents were less controversial. The agreement on participation in INTERFET was considered constructive, although some States expressed concerns about the relative lack of time allowed for consideration of the agreement [27 ] . The Arrangement between the Government of Australia and UNTAET was consistent with paragraph 8 of Resolution 1264 requesting the leadership of the multinational force to “cooperate closely with the United Nations”.
Specific law of armed conflict issues
We have identified three specific issues which arose during the deployment and are worthy of particular mention here: the use of the red cross emblem on armoured fighting vehicles; the use of medical personnel on picket duty and the effect this would have on their wearing the red cross emblem as medical personnel; and the status of militia members detained by INTERFET.
The issue of the red cross emblem on armoured fighting vehicles was raised with the ADF as a result of concerns voiced by the Australian Red Cross. Members of the National Society had observed images on national television of an ADF light armoured fighting vehicle configured as an ambulance and bearing the red cross emblem for protective purposes but also armed with a .50 calibre machine gun. The issue was discussed with the Australian Red Cross National Advisory Committee on International Humanitarian Law.
The ADF’s position on the use of the protective emblem on armoured ambulances is that the law of armed conflict permits personnel of military medical units to be armed and to use those arms in their own defence [28 ] . Furthermore, there is no relevant restriction regarding the type of weapons that may be used for defensive purposes. It is noted that the provision in Article 13, paragraph 2, of Additional Protocol I regarding carriage of “light individual weapons” relates to civilian, not military, medical units. As the .50 calibre machine gun is an i ntegral part of the vehicle, there is no legal objection in the view of the ADF to its bearing the protective emblem and being armed with such a weapon.
The use of the red cross emblem on armoured ambulances was raised as a concern because of media reporting of the deployment. Conversely, the issue of medical personnel acting as armed pickets and carrying out perimeter patrols was actually raised by units and personnel within INTERFET, in relation to the guarding and patrolling of non-medical as well as medical units. The concern of the medical personnel themselves was that if a medical orderly, for example, were to remove the red cross armband to carry out non-medical tasks, then the armband could not be put back on when the orderly returned to her or his medical duties, i.e. that the protection, once lost, was lost forever. — Although this issue was not the subject of a general policy, the usual approach of legal officers advising the units concerned was that the Geneva Conventions and Protocols do not require medical orderlies, as opposed to doctors and nurses, to be exclusively engaged in medical duties. Consequently, a medical orderly could remove the armband for armed guarding or other non-medical duties and reapply it upon returning to medical duties. [29 ]
The final law of armed conflict issue involved strategic level consideration of the view held by the International Committee of the Red Cross that militia members detained for acts of violence against INTERFET members were entitled to prisoner-of-war status. The ICRC’s reasoning was based on the widespread belief that militia members were acting under the control of the Indonesian armed forces. If this assumption was correct, then clashes between militia and INTERFET would have constituted an armed conflict [30 ] . The Directorate of International and Operations Law within the De fence Legal Office rejected the ICRC’s view. Even if it could be argued that there was an armed conflict, the militia failed to meet the established criteria for prisoner-of-war status as they lacked sufficient organization and failed to conduct operations in accordance with the laws of armed conflict. [31 ]
The principal observation arising from an analysis of the legal issues that arose during the INTERFET deployment is that three elements must be addressed. First, the ADF’s interpretation of the law on a particular issue must be determined. Second, flowing from that interpretation, it is necessary to determine the ADF’s policy on the issue. For example, although a conclusion may be reached that, according to law, armoured ambulances can carry .50 calibre weapons, the ADF may choose to remove either the weapon or the red cross for reasons such as consistency with coalition partners [32 ] or public image. Third, once the ADF policy is agreed it must be promulgated both internally and externally to bodies such as the International Red Cross and Red Crescent Movement. In relation to the need for internal promulgation, it is noted that the ADF’s health services were adamant that the carriage of crew-served weapons on armoured ambulances is inconsistent with the custom and practice of international humanitarian law, notwithstanding that this was neither the ADF’s legal assessment nor its policy.
Two significant cross-border incidents occurred during the INTERFET deployment. The first was a fire fight between Australian INTERFET soldiers and Indonesian forces near the village of Motaain on the border between East and West Timor. The second incident involved a statement of the Australian Minister of Defence on 29 September 1999 regarding the authority of INTERFET forces to enter West Timor.
The first incident was apparently due to the local Indonesian authorities persisting in the use of 1933 Dutch maps and the Australians using more recent Indonesian maps. The Dutch map indicated that the Mota Bicu river formed the border. However, the 1992 Indonesian map used by the Australians showed the border as being 500 metres to the west of that position. Apparently, the Indonesian map reflects a post-1975 decision to make the border a fixed provincial border not dependent on the river as a landmark, with the result that as the river changed course over time and as the villagers moved with it, the village of Motaain would shift its location from East to West Timor and vice versa. At the time of the UNAMET ballot, part of the village was in East and part in West Timor. UNAMET decided to declare the village to be in West Timor but permit the villagers to vote at other centres as East Timorese.
Two approaches were taken to resolve the delineation of the border and reach an agreement to remove the prevailing ambiguity. At the strategic level, a legal analysis of the historical justifications for the various Dutch, Portuguese and Indonesian maps was commissioned. Owing to the length of time needed to complete this process, possibly requiring a ground survey, the analysis was of more relevance in the longer term to UNTAET than to INTERFET. Hence a second approach producing a short-term accord was required. INTERFET reached agreement with local Indonesian authorities on a boundary without prejudice to subsequent negotiations on the final border de-limitation. As this was an administrative, rather than legal, process it required little involvement by the INTERFET Combined Legal Office [33 ] ; it resulted in the Memorandum of Understanding for Tactical Coordination in the Border Area Between Nusatenggara Timur and East Timor Between the TNI, INTERFET and UNTAET.
The second incident arose ov er a statement to the media by the Australian Minister of Defence in which he claimed a right of “hot pursuit” for Australian troops to pursue militia members across the land border into West Timor. Although this erroneous statement created more concerns at the diplomatic level than it did on the ground in East Timor, the incident did highlight the need for an ADF position on the scope of the right of self-defence in the border region. There is no direct terrestrial equivalent to the maritime law concept of “hot pursuit”. Hot pursuit under the Law of the Sea permits the continuous pursuit and apprehension of offenders against the law of a State from within that State’s territorial sea and other offshore zones into the high seas but ceasing at the territorial sea of any other State. The right of maritime hot pursuit constitutes an exception to the freedom of the high seas. By contrast, any attempt to apprehend offenders crossing land borders must be with the consent of the State into which the person has fled. A continuing arrangement for cross-border pursuit could be made under a formal agreement setting out the parameters of such action. Deployed contingents from coalition States other than Australia all recognized an international border between the two territories. Australia considered that the two territories were under one jurisdiction and therefore that any apprehension authority, to the extent that it could be exercised anywhere on the island of Timor, would be based exclusively on the UN mandate or subject to separate agreement with Indonesia.
Security Council Resolution 1264 endorsed and ensured respect for Indonesian territorial integrity and sovereignty. There was no provision in the resolution addressing the cross-border apprehension of persons who had committed offences in East Timor. The deployment of INTERFET was specifically limited to the territory of East Timor. The mandate could not be interpreted to auth orize cross-border apprehension. Irrespective of the position taken on Indonesian sovereignty over East Timor, Indonesian consent was a prerequisite for any apprehension action in West Timor.
A related issue involves the extent to which the international law of self-defence, as preserved by Article 51 of the UN Charter, permits armed, cross-border remedies by an aggrieved State against criminal elements (this would include “rogue” elements of TNI/POLRI) or insurgent bands operating from the territory of another State. This issue arose in two contexts: first, an assertion of the right to counter-attack the bases of operation of guerrilla, terrorist or criminal bands conducting armed attacks against a State’s territory or nationals from the territory of another State because of an inability or unwillingness on the part of the “harbouring” State to take preventive action itself; and second, an assertion of a right to return fire across borders in self-defence.
The International Court of Justice dealt extensively with customary international law related to the question of cross-border military incursions in its judgment in the Nicaragua case.34 In particular, the Court considered the requisite criteria justifying forceful cross-border action in self-defence. It accepted the proposition that acts of armed force committed by armed bands, groups, irregulars or mercenaries “if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces” would justify a forceful response as much as if the acts had been committed by regular armed forces across an international border [35 ] . The critical issue for the Court was not the identity or character of the attacking forces but the nature and severity of the forceful measures. The Court distinguished, for example, “assistance to rebels in the form of prov ision of weapons or logistical support or other support” which did not justify a forceful response in self-defence from the cumulative effect of a series of cross-border raids by armed groups [36 ] . If the threshold level of armed activity is satisfied, the customary law prerequisite of the necessity for an armed response in self-defence will be satisfied. The defending State will, of course, still be bound by the principle of proportionality in deciding on the level of force to be applied.
Return of fire across borders is uncontroversial as a legal right. Australia has consistently supported armed remedies in such contexts and there are numerous examples, in State practice, of acceptance of the right to return fire across borders. The right of self-defence is extra-territorial in the sense that its exercise is rarely confined to action taken solely within the aggrieved State’s territory.
INTERFET’s Chapter VII mandate did not negate this fundamental right of self-defence, which included INTERFET’s right to defend itself and extended to INTERFET’s right to protect the East Timorese. Resolution 1264 did not and was not intended to define the entire spectrum of international law rights of, and limitations on, INTERFET forces. In the absence of an explicit qualification, the right of self-defence must continue to operate. We are not suggesting here that East Timor was a defending “State” for the purposes of the national right of individual or collective self-defence. We have also already explained that the ADF did not recognize an international border between East and West Timor. The approach here is that the international law right of self-defence applies extra-territorially. INTERFET was legitimately in East Timor pursuant to Indonesian consent as well as a Security Council Chapter VII mandate. The assertion here is that INTERFET was entitled to rely on international law principles for the exercise of extra-territorial force (i.e. into West Timor where IN TERFET had no explicit right to operate) in de-fence of its own troops and the East Timorese people.
In the case of action against armed bands, guerrillas and terrorists operating from a harbouring State there must be:
clear proof of attacks being launched from the harbouring State; and
a proven inability or unwillingness on the part of the harbouring State to act.
Based on State and UN practice, the hierarchy of response in the case of action to respond to threats from a harbouring State would be as follows:
at least one attack must have been launched from the harbouring State (it is more likely that a pattern of attacks would have to be established, except where the initial attack was of a gravely serious nature and a further such attack appears imminent);
following the attack (or attacks) a complaint must be made to the harbouring State requesting that action be taken to prevent further attacks;
the harbouring State must either fail to act, indicate no intention of acting or demonstrate an inability to take preventive action;
a subsequent attack or attacks occur or there is clear evidence to indicate that such an attack or attacks are imminent;
the armed defensive action must have as its sole objective the removal of the armed threat, with no reprisal action permissible against the forces, infrastructure or civilians of the harbouring State;
the force used in the action must be proportionate to the threat posed.
Circumstances may be such that some aspects of this hierarchy will be compressed, depending on the seriousness and immediacy of the threat, for example where the armed bands, guerrillas or terrorists have a weapon of mass destruction capability (i.e. chemical, biological or radiological).
While Security Council Resolution 1264 recognized the mutual authority of the Indonesian authorities and INTERFET to take security action for East Timor, it was clear from the mandate and the context in which it was framed that INTERFET was authorized to take action where the Indonesian authorities were unable or unwilling to do so with respect to the tasks set out for it. We have already discussed the specific tasks contained within the INTERFET mandate. If sustained attacks that threatened the attainment of these objectives (i.e. that were not merely sporadic incidents) had been launched by militia from bases in West Timor against East Timorese residents or other non-INTERFET personnel, then INTERFET would have been justified in taking necessary and proportional action against those bases.
It is suggested, commensurate with the principles outlined above, that prior to taking such action it would have been necessary for COMINTERFET to request that the UN Secretary-General and Security Council raise the matter with Indonesia, demanding action to prevent the attacks. If there were no satisfactory response then action could have been taken without the need for an additional Security Council resolution (although such a resolution would obviously be preferable).
Investigating alleged crimes against humanity [37 ]
A key reason for the Security Council’s authorization of the deployment of INTERFET was its deep concern over “the continuing violence against and large-scale displacement, and relocation, of East Timorese civilians” [38 ] . However, no international tribunal has yet been established to try individuals alleged to have perpetrated atrocities in East Timor, and the UN, at least for the initial period of the INTERFET deployment, had only limited investigative resources available to conduct investigations of possible crimes against humanity. [39 ]
The main challenge for INTERFET in relation to crimes against humanity, or indeed serious violations of local criminal law, was the type and extent of INTERFET’s involvement. Ultimately, that involvement was restricted to the conduct of limited investigations and attempts to preserve some crime scenes. A note on Guidance for the Multinational Peacekeeping Force in East Timor on the Preservation of Evidence provided by the Office of the High Commissioner for Human Rights was applied by INTERFET forces. The limited INTERFET involvement was due in large part to a lack of available personnel resources — availability in terms both of numbers of military police and of personnel with relevant expertise (including, for example, forensic skills and crime investigation training) — as well as to perceptions that other agencies had a higher primary responsibility and possessed greater relevant expertise, particularly organizations such as the Office of the UN High Commissioner for Human Rights.
It is clear from the East Timor experience that some investigative role with regard to the alleged perpetration of inter-national crimes will virtually always be required in future peace operations. Furthermore, this investigative role will most likely be required from the very start of the deployment. External pressure for the peace force to be involved more extensively in such investigations than was the case for INTERFET will probably be applied from a variety of sources. In future operations, particularly if other more appropriate agencies cannot deploy in sufficient time and the political will is present, an intervenin g military force may need to consider developing a more extensive crimes against humanity/war crimes investigative capability. Any such capability could include a mortuary, a forensic laboratory, forensic specialists, military police investigators, trauma counsellors, translators and logistic support. [40 ]
Defending mission-essential property
A number of national contingents deployed with INTERFET queried whether lethal force could be used to defend mission-essential property. In recent years State practice, as evidenced for example by the Rules of Engagement (ROE) for UN-mandated missions, indicates widespread acceptance of a right to use force, including lethal force, for the defence of property designated as having special status [41 ] . A key distinction is drawn between the defence of mission-essential property as an expression of national self-defence governed by international law, and the right of individual soldiers to defend themselves pursuant to their own municipal law. The ADF Legal Office, with advice from the Australian Attorney-General’s Department, concluded that customary international law acknowledges a right to defend mission-essential property when the destruction of such property would seriously compromise the security of the deployed force. [42 ]
The prosecution of any ADF member for acts allegedly committed in Australia or overseas on military operations will be undertaken pursuant to the Defence Force Discipline Act 1982 (DFDA) [43 ] . The initiation of proceedings pursuant to the DFDA is a matter for the appropriate ADF authorities. Consequently, an ADF clarification policy was developed in the period 1998-1999 in relation to the us e of force to defend property. This policy effectively precludes prosecution in situations where the relevant ADF member has acted in accordance with training and the Rules of Engagement in using force to defend mission-essential property. The policy is subject to the following qualifications:
any property designated as mission-essential property must be specifically and not generically defined in the ROE;
the property must in fact be essential to the accomplishment of the mission or the security of the force;
the use of lethal force to defend mission-essential property must be a last resort in a graduated level of force response unless circumstances do not permit such a graduated response;
the ROE concerning mission-essential property will be subject to approval by the Chief of the Defence Force and the National Security Council;
members must receive proper training to act in accordance with the ROE. [44 ]
INTERFET’s ROE explicitly provided for the use of force (up to and including lethal force) for the defence of mission-essential property. Initially the property identified as mission-essential was extremely broad and included, for example, all INTERFET vehicles. However, the range of property explicitly identified within the definition was eventually narrowed.
Within hours of deploying to East Timor INTERFET troops found it necessary to detain a number of East Timorese [45 ] . To ensure that persons taken into custody received basic legal rights, the Commander of INTERFET directed that detainees were to be conveyed to the Force Detention Centre as soon as practically possible, preferably within 24 hours, but no later than 36 hours after being apprehended. Within 72 hours of a detainee’s arrival at the Centre, the Senior Legal Adviser at the INTERFET Combined Legal Office was to review the detainee’s case and, where appropriate, make arrangements for the transfer of the detainee to the appropriate Indonesian authorities. The Status of Forces Agreement with Indonesia provided, inter alia , that INTERFET could, in furtherance of its mandate, detain a person who was committing or had attempted to commit offences in relation to persons or property. Furthermore, the agreement required detainees to be handed over to the appropriate authorities for the purpose of dealing with the alleged offender. However, handing detainees over to Indonesian civilian police proved unsatisfactory because of the collapse of the civil administration (including the judiciary and court system) in East Timor [46 ] . The detainees were simply released by Indonesian police soon after the transfer of custody.
With the collapse of the Indonesian judicial and detention systems, INTERFET faced the challenge of balancing the rights of detainees to natural justice and due process against the need to maintain detention. On 21 October 1999, INTERFET addressed this issue through the establishment of the Detention Management Unit (DMU) as an interim judicial system, pending the re-establishment of a civil judiciary.
The DMU reviewed 60 cases between 21 October 1999 and 12 January 2000, when a civil judiciary, under the auspices of UNTAET, assumed responsibility for persons arrested/detained in connection with criminal offences. Prior to this tran sfer of custody, the bulk of the DMU’s work consisted of dealing with persons detained on suspicion of the commission of a serious criminal offence — murder, rape, serious assault, kidnapping and arson. The reviews conducted by the DMU were akin to a bail hearing, albeit conducted on the basis of written submissions. The DMU did not conduct trials and reserved for UNTAET the responsibility of doing so. The DMU consisted of a Reviewing Authority [47 ] , Prosecutor, Defending Officer, two Visiting Officers and a Police Expert.
The Detention Management Unit, which was established in consultation with both the UN and the ICRC, provided a review of detention independent of command direction and consistent with principles of international law. In particular, the DMU relied upon the framework of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War. This Convention was designed to “... regulate the relationship between foreign military forces and a civilian population where the force exercises sole authority or is the only agency with the capacity to exercise authority in a distinct territory” [48 ] . INTERFET’s incarceration of detainees was not the first occasion a multinational peace force had found it necessary to hold individuals in detention either in the absence of a workable local criminal justice system or on the basis of agreement by host nation authorities. In the late 1950s during the deployment of the UN Emergency Force (UNEF) in Sinai following the Suez Crisis of 1956, the UN Secretary-General stated that:
“A right of detention, which normally would be exercised only by local authorities, is extended to UNEF units. However, this is so only within a limited area where the local authorities voluntarily abstain from exe rcising similar rights, whether alone or in collaboration with the United Nations. Were the underlying principle of this example not to be applied, United Nations units might run the risk of getting involved in differences with the local authorities or public or in internal conflicts which would be highly detrimental to the effectiveness of the operation and to the relations between the United Nations and the host Government.”[49 ]
As mentioned above, the effective law in East Timor at the time of INTERFET’s deployment was Indonesian law. Without prejudice to the question of the legitimacy of the application of Indonesian law, the UN Secretary-General recognized the de facto reality of Indonesian law in his report on the situation in East Timor [50 ] . The Fourth Geneva Convention requires the application of the prevailing legal regime by military forces in their relations with the local civilian population. This approach emphasizes the need to avoid retro-spectivity and to ensure popular familiarity with the law. On 27 November 1999, UNTAET also ratified the application of Indonesian law in East Timor, in so far as those laws did not conflict with internationally recognized human rights standards and the mandate conferred on UNTAET pursuant to Security Council Resolution 1272 [51 ] . The Detention Management Unit also applied Indonesian law.
In order to provide INTERFET with the ability to assist UNAMET with orderly governance of East Timor and to ensure the security of persons and property there, COMINTERFET signed a Detainee Ordinance on 21 October 1999. The Ordinance was to be implemented subject to the exigencies of the situation prevailing in East Timor from time to time [52 ] and it also suspended any law or provision applying in East Timor with regard to detention or arrest inconsistent with its terms [53 ] . The Ordinance was based on the framework of the Fourth Convention and specified Indonesian criminal law as the applicable law in East Timor.
A detainee was defined as any person, other than a member of INTERFET [54 ] , deprived of personal liberty by INTERFET except as a result of a conviction for an offence. A person could only be held as a detainee if he/she fell within one or more of the following classes identified by the Ordinance:
a person detained on suspicion of the commission of a serious criminal offence;
a person committed for trial in connection with the alleged commission of a serious offence;
a person detained as a voluntary detainee [55 ] ; and
a person detained as a security risk. [56 ]
The Ordinance established some limitations upon the operation of the Detention Management Unit. The first limitation was that the DMU could only consider the continued detention of persons held on suspicion of having committed a serious offence [57 ] . If the offence was not a serious one, the detainee was to be released. This limitation was based partly upon the need to prioritize efforts to deal only with serious matters, but also to ensure that persons were not being deprived of their liberty for substantial periods after committing minor offences.
The second limitation was that the DMU could only consider the continued detention of persons alleged to have committed serious offences after the deployment of INTERFET on 20 September 1999. Article 70 of the Fourth Convention prohibits the Occupying Power from prosecuting and punishing protected persons for acts (other than breaches of the laws and customs of war) that they are alleged to have committed before the territory was occupied. Furthermore, in light of the agreements of 5 May 1999, the Indonesian government had retained responsibility for the maintenance of law and order until INTERFET’s deployment. For these reasons, it was argued that any offences that were committed prior to 20 September were either a matter for the Indonesian authorities, the civilian judiciary that would be established under the auspices of UNTAET or some other international tribunal yet to be established.
Permitting persons accused of committing offences prior to 20 September 1999 to remain at large in East Timor was likely to encourage violent acts of revenge and so impact upon INTERFET’s ability to maintain peace and security. Consequently, COMINTERFET decided that anyone accused of committing offences prior to that date could be held as a security detainee by INTERFET, to be handed over to the civil judiciary in East Timor once it was established. This class of detainee was recognized under the Ordinance but not handled by the DMU. The security detainee regime was to be governed by the relevant provisions of the Fourth Geneva Convention [58 ] , with access to detainees being provided to ICRC delegates. These detainees would be held until an appropriate judicial system capable of dealing with the alleged offences of the detainees was established.
The DMU provided COMINTERFET with a mechanism to deal with detainees on an independent legal basis ensuring that continued detention was subject to review according to legal principles and, therefore, not arbitrary. The challenge was to take due account of the military imperative to restore peace and security while ensuring that individual rights to natural justice and due process were not abused. In the opinion of the members of the UN Secretary-General’s team of human rights experts:
“As far as the question of treatment of detainees is concerned, the conduct of INTERFET has been exemplary. The delegation met with six detainees in conditions in which it could be confiden t that the detainees would have no fear of speaking frankly of any complaints as to their treatment. There were none. The ICRC, which has full access, confirmed that it too had received no complaints from any of the detainees. The tone was set by the Force Commander who, especially in the beginning, established the pattern by personally visiting the detention area. The establishment of a detention-management team also acts as a safeguard against abuse.”[59 ]
In order to establish the standards and procedures of detention, COMINTERFET signed the Orders for the Force Detention Centres, of 21 October 1999. Those directives ensured that detention in the FDC complied with international law standards. Using the framework of the Fourth Geneva Convention [60 ] the Orders provided for notifying the detainee’s family of the detainee’s where-abouts [61 ] , the duties of the Officer-in-Charge of the FDC [62 ] and the Visiting Officer [63 ] , and visits by the ICRC [64 ] , a medical officer, chaplain, legal practitioner, and members of the detainee’s family [65 ] . The Orders stipulated standards to be maintained in searching [66 ] and accommodating detainees [67 ] . Provisions also existed as to a detainee’s cleanliness [68 ] , provision of meals [69 ] , purchases [70 ] , exercise [71 ] , religious activities [72 ] and medical treatment. [73 ]
Privileges and immunities of INTERFET Forces
On 23 August 1999 the government of the Republic of Indonesia and the United Nations entered into a Status of Mission Agreement (SOMA) formalizing the status of the United Nations Mission in East Timor (UNAMET). In general terms the SOMA provided that the government of the Republic of Indonesia would extend to UNAMET, as an organ of the UN, the privileges and immunities provided in the Convention on Privileges and Immunities of the United Nations. The Indonesian government also undertook to provide, at the request of the Special Representative of the Secretary-General (SRSG), armed escorts to protect UNAMET members during the exercise of their functions. Furthermore, the SOMA required the Indonesian government to ensure the safety and security of UNAMET and its members. The SOMA continued to apply to UNAMET until the Mission was replaced on 26 October 1999 by UNTAET.
The deployment of INTERFET to East Timor was based on Security Council Resolution 1264 and therefore was not under the umbrella of UNAMET. Consequently, the above-mentioned Status of Mission Agreement did not apply to INTERFET and new arrangements were considered necessary to clarify INTERFET’s status.
The Status of Forces Agreement (SOFA), already referred to above, between INTERFET and Indonesia established the privileges and immunities of INTERFET. That agreement was negotiated by Australia as the lead nation for the deployment but provided for Indonesia to confirm its application, on request, to each participating State.
The SOFA, in general terms, required members of INTERFET to maintain strict neutrality and to refrain from any action incompatible with the impartial and international nature of their duties or inconsistent with the spirit of the SOFA. It established that INTERFET, its property, funds, assets and its members [74 ] were to enjoy the privileges and immunities specified in the SOFA, as well as those provided for in the Convention on Privileges and Immunities of the United Nations. These privileges and immunities included immunity from Indonesian criminal and civil jurisdiction, as well as freedom from taxation, and local licensing requirements. INTERFET members (military and civilian) were immune from local criminal and civil jurisdiction. They were permitted to possess or carry armaments when authorized to do so by their orders, and it was agreed that members of the force would enjoy freedom of movement into, throughout and out of East Timor, including Atauro Island and the Ambino enclave.
Following the handover of responsibility for East Timor to UNTAET on 26 October 1999, assurance was given by UNTAET on 16 December 1999 that INTERFET should continue to enjoy, mutatis mutandis , the privileges and immunities provided for in the SOFA of 24 September 1999. This arrangement with UNTAET continued until INTERFET formally transferred its responsibilities to UNTAET on 23 February 2000, and was consistent with Security Council Resolution 1272 which requested that INTERFET and UNTAET cooperate closely with each other. [75 ]
The INTERFET deployment in East Timor posed an array of challenges covering all aspects of the operation — including the legal field. The success of the operation guarantees INTERFET an honourable place in the annals of the history of contemporary peace operations. The challenges faced by INTERFET reflected many of the common experiences and issues that have recurred in the course of recent complex peace operations. With regard to promoting the rule of law and defining the international humanitarian and human rights legal norms that should apply in such situations, the operation marked a successful evolution in the approach that has been adopted by Australia. We are not suggesting here that it ran perfectly or that it represents a model for doctrinaire replication. However, the Australian approach to many of the legal challe nges confirmed the existence of some fundamental general principles and issues that must be planned for and considered before any future military deployment into complex emergency situations.
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. 3485(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 Austr alian Foreign Policy (2000), pp. 839-40.
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 L.P. 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 of that 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.
20. Michael J. Kelly strongly advocated the application of the law of military occupation to the presence of the multinational force in Somalia. See Michael J. Kelly, Peace Operations: Tackling the Legal and Policy Challenges , Canberra, 1997. 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 Comm and, 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, “INTERFET Lessons Learnt Conference”, loc. cit. (note 16), transcript, p. 136, 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 1 Field Hospital in East Timor, “INTERFET Lessons Le arnt 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 H. Charlesworth, “Customary international law and the Nicaragua Case”, Australian Yearbook of International Law , Vol. 11, 1984-1987, p. 17.
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”, loc. cit. (note 16), tran-script, p. 118.
40. This structure was suggested in a written submission by MAJ O’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 Ma y 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 ha ve 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 of that panel exercise their judicial functions unfettered by command direction.
48. Michael J. Kelly, “Responsibility for public security in peace operations”, in Helen Durham and Timothy L. H. McCormack (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law , The Hague/London/Boston, 1999, p. 151.
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 ex-ecutive 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 accor-dance 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.