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Transitional Justice in Peace Operations: Shaping the Twilight Zone in Somalia and East Timor1

Published online by Cambridge University Press:  17 February 2009

Michael Kelly
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Extract

Much has been written about transitional justice in the circumstances of organised states progressing towards democracy. Another category of transitional justice demanding equal study and resolution has, however, emerged. That is the interim administration of justice in the vacuum of the disrupted state following traumatic internal conflict, usually involving war crimes and crimes against humanity. Two things are characteristic of this circumstance: first, the requirement for a deployed international military force to do ‘something’ about fundamental law and order while waiting for the civil administrative ‘cavalry’ to arrive; second, the fact that a civil administrative element will eventually have to take over from the military and will also be required to do ‘something’ about the immediate law and order problem but in a manner that leads into the long term reconstruction and ‘end state’ process. In the future, this environment may also include the operation of the International Criminal Court (ICC), where many issues of jurisdiction, investigation, prosecution and the impact on long term rehabilitation will need to be managed.

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Yearbook of International Humanitarian Law , Volume 4 , December 2001 , pp. 213 - 251
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2001

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References

3. Fischer, M.E., ed., Establishing Democracies (Boulder CO, Westview Press 1996)Google Scholar; Teitel, R.G., Transitional Justice (New York NY, Oxford University Press 2000)Google Scholar; McAdams, A.J., ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame ID, University of Notre Dame Press 1997)Google Scholar; and Kritz, N.J., ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vols. I–III (Washington DC, United States Institute of Peace Press 1995)Google Scholar are a sample.

4. For a good summary of the background and lead up to the intervention, see Hirsch, J.L. and Oakley, R.B., Somalia and Operation Restore Hope: Reflections on Peacemaking and Peacekeeping (Washington, United States Institute of Peace Press 1995)Google Scholar.

5. SC Res 794, 47 UN SCOR (3101st mtg), UN Doc. S/RES/794 (1992).

6. SC Res 814, 48 UN SCOR (3188th mtg), UN Doc. S/RES/814 (1993).

7. UNITAF, Staff Judge Advocate After Action Report (SJA AAR) p. 16, TAB E (1) & (2).

8. Memorandum to All Subordinate Unified Task Force Commanders, ‘Detainee Policy’, Lieutenant General Johnston, 9 February 1993.

9. Signal from Commander Joint Task Force (CJTF) Somalia, ‘Commander's Policy Guidance, Civilian Detainees, Vehicle accidents, Medical Care and Reporting Requirements’, 24 December 1992. Other specifications included, ‘Civilians shall be detained only in exceptional circumstances … Exceptional circumstances should include the detention of civilians:

(1) who are suspected of crimes of a serious nature (i.e., willful killing, torture or inhumane treatment, rape, willfully causing suffering or serious injury to body or health, etc.) that the failure to detain would be an embarrassment to the US, or.

(2) whose release immediately following a hostile encounter would likely endanger CTF forces or persons under the protection of CTF forces.

Civilians will not be detained solely for interrogation purposes. However, civilians who have been detained under exceptional circumstances may be interrogated provided the atmosphere remains entirely voluntary.'.

10. United States Army, 720th Military Police Battalion, Joint Task Force Somalia, APO AE 09896–0631, Special Operating Procedure, ‘Detainee Confinement Facility, Operation Restore Hope’, Lieutenant Colonel A.J. Stamilio.

11. UNITAF, SJA AAR, TAB A (1).

12. Facsimile transmission, US Third Army SJA to Major Coulter dated 6 December 1992. Art. 5 refers to Art. 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949.

13. Interview with Colonel F.M. Lorenz (USMC), former UNITAF SJA, Townsville 27 June 1994.

14. UNITAF, SJA AAR, p. 43.

15. Memorandum for the Record, ‘Kismayo Incident’, Lieutenant Colonel F.R. Moulin Deputy SJA HQ UNITAF, 26 December 1992, UNITAF, SJA AAR, TAB Q(2). Perley, J., ‘Somali Clan Killed Dozens of Rivals, US Officials Say’, New York Times (29 12 1992) p. 1Google Scholar. Memorandum for the Record, from Task Force Kismayo Surgeon Major T.P. Pfanner, ‘Observations at gravesite Near Kismayo Airport’ (3 January 1993) UNITAF, SJA AAR, TAB Q(2). ‘Given the similar times of death of the bodies and their conditions, it would seem logical to conclude that this scene represents a site of mass murder and probable torture. The involved persons appeared to be prominent members of their society or at least affluent by local standards. I personally observed at least 14 bodies and suspect many more are present to include possibly mass graves.’.

16. Briefing by HQ UNITAF Judge Advocates attended by author on 8 February 1993.

17. UNITAF, SJA AAR, p. 44. F.M. Lorenz (UNITAF SJA), ‘Confronting Thievery in Somalia: The Use of Non-Lethal Force During Operation Restore Hope’, paper dated 13 April 1993, pp. 6, 9.

18. That is the requirement to follow detention with a fair trial as specifically required by Art. 71 of the Fourth Convention. See also Arts. 9–11 of the UDHR and Art. 9 of the ICCPR. Even if the extent of the plan was to work vigorously towards enabling the local justice system to try offenders, this would have satisfied the requirements of Art. 71, which states that offenders be brought to trial as rapidly as possible.

19. Hirsch and Oakley, op. cit. n. 4, at p. 88.

20. UNITAF, SJA AAR, TAB S (1).

21. Even had the domestic legal restriction not been a factor, there was no real enthusiasm in the senior levels of command for getting involved with the local police beyond getting something on the streets of Mogadishu to control the crowds so that UNITAF troops did not have to. Anything else was considered ‘beyond the mission’. Interview with Colonel Lorenz, supra n. 13.

22. Hirsch and Oakley, op. cit. n. 4, at pp. 87–89.

23. UNITAF, SJA AAR, p. 46. Also personal observations of author in dealings with LTCOL Spataro.

24. Interview with Brigadier Ahmed Jama, Washington, 3 January 1995. Brig. Jama was approached to join the committee but declined due to the policy of allowing non-police officials on the committee, which he claimed politicised it.

25. Memorandum from Provost Marshal to UNITAF J-3, ‘Auxiliary Security Force’, 27 January 1993.

26. Report by J. Hirsch of USLO to US State Department, ‘Somali Jurists Meet at UNOSOM’, 3 March 1993. Lorenz, F.M., ‘Will the Rule of Law Replace the Law of the Gun?’ 48 Washington State Bar News (1994) p. 19Google Scholar. Also personal observations of the author, who was in attendance at the 3 March meeting and the meetings with the southern Mogadishu jurists.

27. Interview with Dr Abdullahi Ossable Barre, former judge of the Supreme Court of Somalia, 3 March 1993, UNOSOM Headquarters Mogadishu.

28. Once again, this was considered ‘beyond the mission’. The initiatives in this direction came from proactive individuals, such as Phillip Ives and Colonel Lorenz. There was no official encouragement of their efforts but only ‘mild scepticism’. It was questioned as an unnecessary involvement. Because of this attitude, as Colonel Lorenz states, ‘Other than meeting and talking these things through I guess we really did not provide any substantial support … we didn't do a lot.’ Interview with Colonel Lorenz, op. cit. n. 13.

29. Most troops deployed with a sense of mission and goodwill but soon became disillusioned with the inactive operation in those places where local commanders did not engage in civic action, succumbing to the laager mentality. Mazarr, M.J., ‘The Military Dilemmas of Humanitarian Intervention’, 24 Security Dialogue (1993) pp. 157–158CrossRefGoogle Scholar.

30. Briefing HQ Australian Forces Somalia, 6 February 1993.

31. Lorenz, op. cit. n. 17, at pp. 7–8.

32. Ibid., at p. 5.

33. Ibid., at p. 4. See also Martins, M., ‘Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering’, 143 Military LR (1994) at p. 130Google Scholar.

34. Cheney, P., ‘Canada… Canada’, The Sunday Star (Toronto, 10 07 1994)Google Scholar Section F. Report of the Board of Inquiry: Canadian Airborne Regiment Battle Group, Phase I, Volumes XI and XII, National Defence Headquarters, 31 August 1993. Commission of Inquiry into the Deployment of Canadian Forces to Somalia, 1997.

35. ‘Although we would not seek to enter as an occupying force, recent experience in Iraq demonstrates that if we establish control over an area with no government infrastructure, we may be held to occupation force standards. Under international law, an occupying force is responsible for the public welfare, to include safety, sanitation and a whole host of other requirements. We have to make every effort to limit our responsibility in these areas, to ensure that we act within our capabilities, and be certain that the primary mission is still accomplished.’ Memorandum from UNITAF SJA to Commanding General, ‘JTF Legal Issues and Legal Office Staffing’, 1 December 1992, UNITAF, SJA AAR, TAB A (1). Interview with Colonel Lorenz, supra n. 13. This modified initial US legal opinions as indicated by a document dealing with ‘Special Command Responsibilities and Obligations Concerning the Somali Population.’ Dated 18 December 1992 and faxed to Australia for the guidance of the Australian contingent on 21 December 1992. This was an annex to a general guidance and directive document to be provided to commanders at relevant levels in UNITAF. It stated that the operation would:

‘… impose special responsibilities on commanders concerning legal actions and legal responsibilities toward the Somali population in areas under the commander's control. Commanders should ensure their level of legal and civil affairs staffing is sufficient in light of these special and unique considerations.

2. Command Responsibilities:

A. Safety and Security of the local population In the area under his control, a commander must protect the population not only from attack by military units, but also from crimes, riots, and other forms of civil disobedience. To this end, commanders will:

(1) Demand and enforce such obedience as may be necessary for the security of his forces and the maintenance of law and order.

(2) Where necessary, establish rules of law necessary to fulfil this obligation.

(3) Detain those accused of criminal acts or other violations of public safety and security.

(a) Such detention shall include reasonable due process for the detainee under the circumstances.

(b) Persons so detained will not be detained or incarcerated together with persons entitled to Prisoner of War (POW) status.

(c) The period of detention will continue until the accused person, along with available evidence of his crime, can be turned over to authorities of a follow-on peacekeeping organization or a properly constituted local government.

B. Hygiene and Public Health. To the fullest extent possible, the commander has the duty of ensuring and maintaining, with the cooperation of international, national, and local authorities, medical services and public health and hygiene in the area under his control.

(a) In particular, commanders must apply those prophylactic and preventative measures necessary to combat the spread of contagious diseases and epidemics among those refugee populations that can be expected to gather in secure areas.

(b) The absence or ineffectiveness of international, national, or local medical or health organisations does not relieve the commander of this responsibility.

C. Food and Medical Supplies. It is the specific purpose of (the Operation) to provide and allow the passage of food, medical supplies, and other necessities of life to the Somali population. In those areas under the commander's control, it is his responsibility to ensure that required goods are in fact provided to the fullest extent of his ability. Ideally, this function will be fulfilled in cooperation with International Relief Organizations, but failures on the part of those organizations do not relieve the commander of this responsibility.' Clearly later policy deliberations resulted in the dramatic scaling back of this directive, although no official modification was passed on to the contingent commanders. This document was in effect an acknowledgment of the applicability of the laws of occupation as ‘legal responsibilities’.

36. The deployment of UNITAF into the southern areas of Somalia only was a point of some controversy. The mandate in UNSCR 794 clearly authorised the intervening force to deploy and exert authority throughout Somalia. The worst affected famine areas and fighting were occurring in the south, however, which is where the relief agencies were experiencing the most difficulty. As the mission was, in the eyes of the US Administration and in terms of the specific UNITAF mandate, about enabling the relief agencies to do their job, this limited deployment would be justified by that criteria. As noted, UNSCR 794 did refer to much broader issues such as the restoration of ‘peace, stability and law and order with a view to facilitating the process of a political settlement under the auspices of the United Nations, aimed at national reconciliation in Somalia’, as well as the prevention of breaches of international humanitarian law. These objectives would certainly have been facilitated by a nationwide deployment by UNITAF, it being infinitely more capable of doing so than UNOSOM II ever was. See United Nations Department of Public Information Reference Paper, The United Nations and the Situation in Somalia (April 1995) pp. 7–9. Bolton, J.R., ‘Wrong Turn in Somalia’, 73 Foreign Affairs (01/02 1994) pp. 59–61CrossRefGoogle Scholar.

37. Conference between LtCol Hurley and author, Battalion Headquarters Baidoa, 13 February 1993. He was later to say:

‘A facet of command relationship that I had never experienced before existed in the personal authority given to the HRS commander. In the absence of any form of civil government at any level and the failure of the UN to provide resident local UN political officers, HRS commanders became military governors.’ Hurley, D.J., ‘Operation Solace’, Australian Defence Force Journal (01/02 1994) No. 104, p. 31Google Scholar.

38. These points are relevant to assessing what if any aspects of the law of occupation applied to the deployment. The principal issue in this respect is whether the deployment is with or without the consent of the sovereign.

39. Somalia had ratified the Conventions in 1969. All contingents of UNITAF were from states which had ratified the Fourth Geneva Convention.

40. The Somali Democratic Movement (SDM) representatives and the elders of the Bay Region presented a petition to Admiral Howe when the SRSG visited Baidoa on 11 April 1993, requesting that the Australians be retained in the area beyond the scheduled departure date of 20 May 1993. (Observations of the author at the conference held in Baidoa courthouse with Admiral Howe and the Bay leadership on 11 April 1993.)

41. Maj. R.H. Stanhope, Minute to LtCol. J.M. Smith, Army Force (ARFOR) SJA, 8 February 1993. (In possession of author.).

42. 1st Battalion RAR Group Post Operation Report (1 RAR POR), 31 May 1993, Enclosure 4, p. 6.

43. Maj. R.H. Stanhope (OC CMOT), Minute to ARFOR SJA, 8 February 1993.

44. Capt. S. Bagnall, Australian Liaison Officer, Minute to Provost Marshall's Office, 16 April 1993.

45. Vercammen, P., Auxiliary Security Force in Baidoa. Report to UNOSOM, 10 04 1993Google Scholar.

46. These materials were supplied by the UNITAF Provost Marshall, LtCol. Spataro, in English. Also included were extracts of the Criminal Procedure Code.

47. Observations of the author, who attended the meeting, later confirmed by Dr Ossable and Mr Mohamed Mohamed Isgow of the committee at a meeting in Baidoa on 6 March 1993.

48. M. Ganzglass, ‘Evaluation of the Judicial, Legal, and Penal Systems of Somalia’, Report to the Special Representative of the UN Secretary-General (SRSG) UNOSOM II, 22 April 1993, pp. 4–5, 35.

49. Discussions between author and Baidoa judiciary as well as Dr Ossable and other members of the Mogadishu Steering Committee.

50. In the longer term it was envisaged that the courts would be able to move away from the police compound to emphasise the concept of separation between the police and judiciary. This had, in fact, been the case prior to the civil war.

51. The first case was heard on 19 March 1993 and dealt with a car thief who was given five years imprisonment. (Field notes by author.).

52. P. Vercammen, Report to UNOSOM, 24 March 1993. Personal observations of author and discussions with local Somalis while based at Police Compound. Interview with Superintendent Bill Kirk, Canberra, 15 August 1995.

53. Ganzglass, M., ‘The Restoration of the Somali Justice System’, in Clarke, W. and Herbst, J., eds., Learning From Somalia: The Lessons of Armed Humanitarian Intervention (Boulder CO, Westview Press 1997) pp. 24–25Google Scholar.

54. Two men were walking towards Warsame's house … Warsame called out to the two people to stop walking past his house and that they were to change over to the other side of the street. The two people said to Ganey (Warsame's nickname), ‘This is our country and we are Baidoa citizens, and you come from far away. How can you order us?’ After they said this, Ganey said, ‘I chased Siad Barre's soldiers away and I can do what I want.’ They said to him, ‘We don't obey your orders,’ and they refused to cross over to the other side of the street. Ganey then stood up where he was and raised the AK 47 rifle up and shot the two men dead. He shot his rifle at the men until he ran out of bullets. He then removed that magazine and replaced it with another.

Some days later, about the same time, I was walking home from the ICRC warehouse, when I had to pass by Warsame's place. I used to go past his place every day. I saw an old man who was carrying one bag of rice and two tins of oil … Warsame was sitting down and he called out to the man with the articles to stop and put his load on the ground. He pointed his rifle at the man. The man put the articles on the ground and Warsame sent one little boy out to pick up the load. The man would not let the little boy take the rice. Warsame then told the little boy to get out of the way. Warsame then stood up and fired his rifle into the man. He fired at his head and then lowered the shots down the man's body. The man fell over dead and Warsame walked over to the man's body and helped the little boy pick up the articles and take them back to his house. I felt terrible to see the mess that the body was in. There was blood everywhere. I left the area straight away.’ Extracts from a statement by Mohamed Osman Ahmed, 22 March 1993. These single incidents illustrate the wealth of evidence of random killing that characterised the manner in which the regime of terror was maintained in the Bay region. Evidence also showed that this formed part of a deliberate pattern of attritional extermination through single and mass killings and starvation, which opened up opportunities to resettle SLA clan members in the area.

55. Report by Steering Committee, 1 April 1993.

56. With the exception of the Gutaale case, as described at section 2.2.5.1 infra.

57. An example of the method of property acquisition is provided by an extract from the statement of Ali Tabut Mohamed, 25 March 1993:.

‘In early April 1992 I was in the Pharmacy when a man I know as Ganey … came into the shop. He got two persons to tie me up and beat me with a stick. They broke my right small finger and they also broke one of my toes on my left foot. They then took me to the Police Station in central Baidoa when I was again beaten … There Ganey told me not to ever go back to the Pharmacy as he would shoot me.

He took my lock to the door and replaced it with one of his own … About ten days later I noticed that the Pharmacy was now a Tea Shop and the Tea Shop was run by Ganey's wife.'.

58. The evidence uncovered in the investigations and supported by the observations of the NGOs satisfied the test outlined in Art. 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.

Apart from the killings, Gutaale attempted to use starvation as his key weapon, by raiding NGO warehouses, attacking convoys and a host of other tactics designed to prevent food reaching the Rahanweyn. He also pursued the Marehan/Barre/Morgan method of targeting women and children to choke off the next generation. Certainly a prima facie case against Gutaale existed. Given the extent of the deaths (40 percent of the population, including 70 percent of the children) his efforts to deny food, progressively slaughter the survivors, and to colonise the area with his own ethnic group, it could be inferred he intended to destroy the Rahanweyn. In any event the evidence indicated that he directed and participated in the destruction of a large ‘part’ of the Rahanweyn in the region. In terms of legal responsibility under the Genocide Convention it should be noted that Art. 4 states:

‘Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.’.

59. The SLA, as part of Aideed's SNA forces, were part of the civil war being waged against Ali Mandi and various other factions. It was, without question, party to the armed conflict which was continuing at the time of the offences. See Pictet, J.S., ed., The Geneva Conventions of 12 August 1949: Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, ICRC 1958) p. 36Google Scholar. Additional Protocol II did not apply as Somalia had not become a party to the Protocols.

60. See the recent jurisprudence from the International Criminal Tribunal for the Former Yugoslavia (ICTY) emerging from the Tadić cases, Prosecutor v. Duško Tadić A/K/A ‘Dule’ (Decision on the Defence Motion on Jurisdiction), 10 August 1995, especially paras. 65–74 in reference to common Art. 3 and paras. 75–83 on crimes against humanity. See also International Court of Justice in the Nicaragua case (Military and Paramilitary Activities (Nicaragua v. US)) ICJ Rep. (1986) p. 4 (Merits Judgment of 27 June 1986) relating to the customary law status of common Art. 3.

61. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 1948 p. 277Google Scholar. Art. I of the Genocide Convention states:.

‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’ See also Hakewill, P., ‘Murderous Complacency’, The Australian (6 04 1995) p. 15Google Scholar.

62. ‘The APC drove down the market street very fast. People had to get out of its way or it would have run them over. The APC went past me, it then turned around up the street further and came back down the street at high speed. The APC then ran straight at a large group of people standing at the side of the road. I had to jump out of the way as I would have been run over. I looked and saw the APC run over a lot of people. They were bush people from the refugee camps. The APC then stopped a short distance away and then reversed back over all the people it had run over. There were dead people everywhere.

The APC then drove forward again and roared off up the road. The people on the APC were all laughing at this. I went over to help the people who had been run over. No one on the ground lived, they all died. I along with a lot of the commercial people (shop keepers), helped pick up the dead people. Altogether there were seven children killed and eight women. The bodies were all crushed, some had their heads run over, there was blood everywhere. We loaded all the dead people onto two trucks that came from the Red Cross.’ Extract from the statement by Hassan Isaak Ali of 5 April 1993. All the witnesses were able to identify the driver as Gutaale.

63. Under Arts. 228–229 of the Somali Criminal Procedure Code, the higher courts have discretion to raise or lower sentences in cases taken on appeal. Wekerele, A., Somalia: A Country Law Study (Washington DC, Library of Congress 1990) p. 11Google Scholar.

64. Affirmed in discussions with representatives of the Baidoa Judiciary and the Mogadishu Steering Committee on 6 March 1993 in Baidoa.

65. Art. 94 Punishment of Death:

‘The punishment of death shall be carried out by shooting inside a penitentiary, or any other place prescribed by the Minister of Grace and Justice.’ Ganzglass, M.R., The Penal Code of the Somali Democratic Republic (New Brunswick NJ, Rutgers University Press 1971) p. 112Google Scholar.

66. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, Economic and Social Council Resolution 1984/50, adopted 25 May 1984.

‘In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, intentionally committed with lethal or extremely grave consequences. Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission.

Persons below 18 years of age, pregnant women, new mothers or persons who have become insane shall not be sentenced to death.

Capital punishment may be imposed only when guilt is determined by clear and convincing evidence leaving no room for an alternative explanation of the facts.

Capital punishment may be carried out only after a final judgement rendered by a competent court allowing all possible safeguards to the defendant, including adequate legal assistance.

Anyone sentenced to death shall have the right of appeal to a court of higher jurisdiction.

Anyone sentenced to death shall have the right to seek pardon or commutation of sentence.

Capital punishment shall not be carried out pending any appeal, recourse procedure or proceeding relating to pardon or commutation of the sentence.

Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.'.

These rules have no binding force, particularly if it is accepted in the case of Somalia that the laws of occupation applied. It was nevertheless felt that their spirit should be observed as closely as possible. While there is no definition of ‘minimum possible suffering’ accompanying the rules, Gutaale's death was instantaneous, as confirmed by medical examination, and was certainly not accompanied by any mistreatment or prolongation. Given that there was no further possibility for appeal the ECOSOC rule could not be complied with in this respect, although the President of the Court of Appeal filled the role of final reviewer and dealt with petitions for pardon and commutation. As far as the laws of occupation were concerned, the Australians also felt that Arts. 68, 70 and 75 of the Fourth Geneva Convention, which would have been pertinent to the matter were the trial conducted by the Contingent, had been complied with.

67. ‘Because UN officials and the Somalis seeking peace are so eager for the system to work, the outcome of the Gutalli [sic] case was hailed as a triumph of justice’, Wilke, C., ‘Law and Order Somali Style — Ravaged by War and Famine, Somalia Strives to turn Chaos into Civilization by Re-establishing the Rule of Law’, Boston Globe Sunday Magazine (27 06 1993)Google Scholar. Schofield, J., ‘Australians Help Convict Somali Bandit of Murder’, The Age (4 05 1993) p. 11Google Scholar.

68. Memorandum, SRSG Admiral Howe to LTG Bir UNOSOM Forces Commander, 7 May 1993.

69. Minute to HQ UNOSOM, from HQ AFS, 18 May 1993.

70. M. Ganzglass, ‘Evaluation of the Judicial, Legal and Penal Systems of Somalia: Report to the Special representative of the UN Secretary General UNOSOM II, 22 April 1993’, pp. 18–21, 28, 31, 33, 37. Mr Ganzglass and Ms Wright travelled throughout Somalia, making a full evaluation of the justice situation. Mr Ganzglass was later to sum up his impressions of Baidoa as follows:.

‘I visited Baidoa as a State Department consultant in UNOSOM's effort to rebuild the Somali police and judiciary and am familiar with the Australian efforts … With the consent of local leaders they rebuilt the courts and police stations, and established a rule of law. One judge I met, who remembered me as his teacher in a course on the Somali penal code, was now teaching police the rudiments of the penal code. When the Australians left in May 1993, the entire Bay Region was peaceful … In all the zones controlled by the Marines and the US army, there were no organised programs to work with local councils and rebuild courts and police stations or to train and equip the police. The US regarded such efforts as ‘mission creep’. The Australians regarded it as essential to their mission to restore security to the area … Haiti today is a good example of what we should have done in Somalia — recruit and train a police force and restore the judicial system. The pity is that the successful Australian effort was not implemented throughout the operational area and expanded to the north and northeast.’ 8 World View (Spring 1995) p. 3Google Scholar.

71. A. Wright (Police, Judicial & Prison Policy Advisor to SRSG), ‘Task Force on Police, Judicial and Prison Issues’, Memorandum detailing strategy, 20 April 1993. Also Budgetary Details document provided to author.

72. Meeting held at HQ UNOSOM, 16 May 1993.

73. Discussions between the author and immigrant and refugee Somalis in Washington D.C. in January 1995, whose family members in Somalia had advised them of their moves.

74. Telephone report received from Mr Alexandros Yannis of the European Community (Somalia Operations) Nairobi HQ, 7 September 1995.

75. ABC journalist Mr James Schofield, letter to Maj. M.J. Kelly, dated 9 June 1995. Discussions with Somalis from Baidoa attending the UN Plainsboro Lessons Learned Conference on Somalia, 13–15 September 1995. See also details of general situation laid out in the comprehensive Life and Peace Report Local Administrative Structures in Somalia: A Case Study of the Bay Region, of June 1995.

76. Reuters reports of 17 and 19 September 1995. See also ongoing and archived reports of the situation in Baidoa and Somalia in general maintained by Mr Michael Marin on the ‘Nomad Net’ World Wide Web site.

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

78. See 8 Australian YIL (1978–1980) pp. 281–282Google Scholar for extracts 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’ in Department of Foreign Affairs and Trade, Australia and the Indonesian Incorporation of Portuguese Timor 1974–1976: Documents on Australian Foreign Policy (2000) pp. 839–840.

79. UN Security Council Resolution 1246, UN Doc. S/RES/1246 (15 June 1999).

80. Ibid.

81. The Weekend Australian (11–12 September 1999) p. 2.

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

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

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

85. UN Security Council Resolution 1272, UN Doc. S/RES/1272 (24 October 1999).

86. 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.

87. The Australian contribution was: HQ INTERFET (including a command support unit); a brigade headquarters; three infantry battalions; an engineer regiment; two artillery batteries (employed in security and civil affairs duties); a construction squadron; a brigade administrative support battalion; an aviation reconnaissance squadron; an aviation regiment; a field hospital; a force support battalion; a RAAF expeditionary combat support squadron; a RAAF airfield defence squadron; a RAN frigate; two landing craft heavy; and a clearance diving team. In addition, RAN sea lift and support units and RAAF airlift capabilities supported the force. Source: Briefing paper provided by Strategic Command Division, HQ ADF.

88. United Security Council Resolution 1244 (1999) establishing KFOR and authorizing its deployment into Kosovo expressly recognized the sovereignty of the Federal Republic of Yugoslavia over Kosovo.

89. See the series of UN resolutions regarding Indonesian sovereignty referred to above.

90. See for example, General Assembly Resolutions 3485 of 12 December 1975, 31/53 of 1 December 1976, 32/34 of 28 November 1982 and Security Council Resolutions 384 (1975) and 389 (1976) of 22 April 1976.

91. This was, for example, the NZ 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.

92. Australia, as lead nation, negotiated a diplomatic agreement (covering matters often contained in Status of Forces Agreements) with Indonesia on behalf of all participating nations.

93. In Kosovo, the applicable law was clearly that of the Federal Republic of Yugoslavia but for East Timor there were arguments about whether Indonesian law or Portuguese law was the most appropriate legal regime.

94. The NZ position was different in relation to the application of LOAC. The NZ position was that not only the principles but the rules of LOAC applied to the deployment on the basis that the UN Secretary General's Bulletin of 12 August 1999 states that the principles and rules apply to enforcement actions or peacekeeping operations. The ADF position, by contrast, is that the Secretary General's Bulletin did not apply the principles and rules of LOAC to INTERFET as the Bulletin only applies to UN commanded forces or to peace enforcement or peace keeping operations where UN forces are a party to a conflict. The NZDF position was contained in the written submission of LtCol. Maybee, ibid., to the INTERFET Lessons Learnt Conference.

95. Comments of LtCol. Kelly, Directorate of International and Operations Law, Defence Legal Office, INTERFET Lessons Learnt Conference, transcript p. 134.

96. It will be recalled that the Australian contingent strongly advocated the application of the law of military occupation of the multinational force in Somalia. See also Kelly, M.J., Peace Operations: Tackling the Military, Legal and Policy Challenges (Canberra, Australian Government Publishing Service 1997)Google Scholar. As we have seen, that law was in fact applied by the ADF in Somalia to good effect. This interpretation of the law has subsequently been asserted by Australia at the Meeting of Experts on the Fourth Geneva Convention of 1949 in Geneva, October 1998. Guidelines on the application of this approach have also been promulgated as Defence Legal Office policy.

97. Within the Department of Defence, primary responsibility for all aspects of this documentation development process was vested in the Directorate of Agreements within the Defence Legal Office in Canberra.

98. Ibid., Comments Cmdr. Letts, Naval Command, transcript p. 98.

99. 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 civilian population. For the most comprehensive treaty definition of the crime, see Art. 7 of the Rome Statute of the International Criminal Court — accessible at http://www.un.org/icc/part2.

100. Preamble to UN Security Council Resolution 1264 (1999).

101. 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, transcript p. 118).

102. Here it is noted that the ADF did not deploy a trained investigator until after seven days after INTERFET troops deployed to East Timor. Comments of Maj. Freeman, ibid.

103. AD HQ fielded offers from civilian organisations during the INTERFET operation, inter alia, to provide civilian forensic teams to be attached to INTERFET.

104. This structure was suggested in a written submission by Maj. O'Kane, SO2 Legal, HQ WESTFOR, in a written submission to the INTERFET Lessons Learnt Conference.

105. 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’, Blenkin, M. and Martinkus, J., ‘Militia Disarmed: Peacekeepers Arrest Eight’, The Daily Telegraph, 1st edn. (22 09 1999) p. 3Google Scholar.

106. On 4 October 1999, the Secretary-General reported: ‘The Indonesian police … appear to have withdrawn from the territory [East Timor]. In Dili, there is a token presence of 12 persons, comprising of 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). UN Doc. S/1999/1024 (4 October 1999), para. 13.

107. For a full account of the establishment of the DMU and its process, see Oswald, B., ‘The INTERFET Detainee Management Unit in East Timor’, 3 YIHL (2000) p. 347CrossRefGoogle Scholar.

108. The UNTAET administration was a fully responsible UN ‘government’ providing all the organs of administration and staffing them with predominantly expatriate personnel. This was established under Security Council Resolutions 1272 (1999) of 25 October 1999 and 1338 (2001) of 31 January 2001 and through the promulgation of UNTAET Regulation No. 1999/1 of 27 November 1999. A later regulation (No. 2001/28 of 19 September 2001) established the Council of Ministers of the Transitional Government in East Timor.

109. See UNSG Reports to UNSC S/2000/53 of 26 January 2000, S/2000/738 of 26 July 2000, S/2001/42 of 16 January 2001, S/2001/436 of 2 May 2001, S/2001/983 of 18 October 2001.

110. These state:

‘3.1 Until replaced by UNTAET regulations or subsequent legislation of democratically established institutions of East Timor, the laws applied in East Timor prior to 25 October 1999 shall apply in East Timor insofar as they do not conflict with the standards referred to in section 2, the fulfillment of the mandate given to UNTAET under United Nations Security Council resolution 1272 (1999), or the present or any other regulation and directive issued by the Transitional Administrator.

3.2 Without prejudice to the review of other legislation, the following laws, which do not comply with the standards referred to in section 2 and 3 of the present regulation, as well as any subsequent amendments to these laws and their administrative regulations, shall no longer be applied in East Timor: Law on Anti-Subversion; Law on Social Organizations; Law on National Security; Law on National Protection and Defence; Law on Mobilization and Demobilization; Law on Defence and Security.

3.3 Capital punishment is abolished.'

See UNSG Reports to UNSG S/2000/53 of 26 January 2000; S/2000/738 of 26 July 2000; 5/2001/42 of 16 January 2001; S/2001/436 of 2 May 2001; and S/2001/983 of 18 October 2001.

111. UNTAET/REG/2000/30 of 25 September 2000.

112. Section 4 Regulations issued by UNTAET:

‘In the performance of the duties entrusted to the transitional administration under United Nations Security Council resolution 1272 (1999), the Transitional Administrator will, as necessary, issue legislative acts in the form of regulations. Such regulations will remain in force until repealed by the Transitional Administrator or superseded by such rules as are issued upon the transfer of UNTAET's administrative and public service functions to the democratic institutions of East Timor, as provided for in United Nations Security Council resolution 1272 (1999).'

Section 6 Directives:

‘6.1 The Transitional Administrator shall have the power to issue administrative directives in relation to the implementation of regulations promulgated.’

113. See the Amnesty International Report on this subject (East Timor, Justice Past, Present and Future, AI Index: ASA 57/001/2001 of July 2001). While this report contains many justified criticisms the enormity of the task and the lack of human and financial resources must also be taken into account.

114. Convention relating to the Status of Refugees of 28 July 1951 (entered into force on 22 April 1954), Article I of the Protocol relating to the Status of Refugees of 31 January 1967. Statute of UNHCR annexed to General Assembly Resolution 428 (V) of 14 December 1950.

115. These incidents were relatively minor matters involving the access to and questions asked of returnees by PKF intelligence personnel and in one case the temporary detention and questioning of a significant ex militia figure by the PKF in a way that cut across UNHCR objectives. (These matters were observed by and involved the author in his official capacity as Chief Legal Adviser (CLA) to the PKF Force Commander in East Timor from 24 July 2001 to 31 January 2002).

116. There were a number of technical requirements in the processing of detainees which included the time frames for charging and bringing before an investigating judge. There were times when the PKF was not expeditious in handing over detainees to CIVPOL to allow them sufficient time to deal with process requirements or when detainees were held longer than the period allowed to the PKF. (Observations and dealings of the author as CLA).

117. UNTAET PKF Operations Order, 08–0, 1 File Number: 3313–1, 8 December 2001, Annex L Appendices 1–6. ‘Go and See’ visits were arrangements made by UNHCR with refugees to assist in the defeat of misinformation campaigns in West Timor about the state of affairs in East Timor and to reassure them about the local acceptance of their return. They would then be transported back to West Timor. The hope was that participants would influence or lead their families and refugee communities to return. These visits might involve figures who were of a security concern or interest.

118. Observations of the author. The author was involved in the arrangements described as well as the execution of the guidelines with UNHCR.

119. Operational Support Arrangement between the UNTAET Civil Police Commissioner and the PKF Commander executed on 22 March 2002. Drafted by the author and the legal adviser to the CIVPOL Commissioner, Mr Wayne Hayde.

120. This lack of capability arose from insufficient numbers, resources and variable level of training and standards in the various CIVPOL contingents.

121. These are observations by the author. This period covered the constitutional assembly elections and formation of the assembly; the drafting of the constitution; the conclusion of key agreements with Indonesia; the Presidential election; the return and reintegration of the militia families and members; the establishment of the Truth and Reconciliation Commission; the conclusion of guidelines on the processing of returnees; the conduct of reconciliation meetings; cooperation between CIVPOL and PKF; the management of the operational deployment of the East Timorese Defence Force; and the establishment of the indigenous government.

122. Report of the Panel on United Nations Peace Operations, L. Brahimi, Chairman, of 21 August 2000, A/55/305-S2000/809 (available at http://www.un.org/peace/reports/peace_operations/) See in particular paras. 39–47, 76–83, 86–91, 118–125 and 219–225.