3. ‘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, 10 December 1999, UN General Assembly, Fifty-forth session, Agenda item 116(c), para. 67, UN Doc. A/54/660.

4. S/RES/1246(1999), 11 June 1999, para. 1.

5. These Agreements are annexed to the report of the Secretary-General S/1999/513, 5 May 1999.

6. S/1999/1024, 4 October 1999, Report of the Security-General on the Situation in East Timor, para. 3.

7. Statement by the Secretary-General on the announcement of the government of Indonesia, 12 September 1999 (http://www.un.org/News/ossg/sgindon.htm).

8. S/RES/1264 (1999) 15 September 1999.

9. S/RES/1264 (1999) 15 September 1999, paras. 5 and 8.

10. Exchange of Diplomatic Notes Constituting an Agreement 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 Force Agreement. The SOFA provided for Indonesia to confirm the application of the SOFA, on request, to each state participating in the deployment. It was therefore a matter for negotiation between participating states and Indonesia whether that state's forces would fall under the SOFA.

11. This incident, which occurred on 10 October 1999, involved an exchange of gunfire near the village of Motaain and occurred as a result of ambiguity about the exact location of the border between East and West Timor. Logue, Sergeant Jason, On Patrol in East Timor: The Engagement in Motaain (Canberra, The Australian Army in Profile 1999) pp. 15–17Google Scholar.

12. The law concerning a person's status as a member of an armed force is found in Arts. 43 and 44 of the 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I). Art. 43 states:

‘(1) The armed forces of a Party to a conflict consists of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

(2) Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

(3) Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.'

Art. 44 of Protocol I adds, inter alia:

‘(3)Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.’

13. Blenkin, M. and Martinkus, J., ‘Militia disarmed: Peacekeepers arrest eight’, The Daily Telegraph, 1st edn. (22 09 1999) p. 3Google Scholar.

14. A correspondent in Dili, ‘Terror table turns militia’, The Australian (27 09 1999) p. 12Google Scholar.

15. S/1999/1024, 4 October 1999, para. 13.

16. A serious offence 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, and looting.

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

18. The Judge Advocates' panel is made up of officers who are 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.

19. The Ordinance also came into effect on that date.

20. Sarooshi, D., The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford, Clarendon Press 1999) pp. 62–63Google Scholar.

21. UNTAET/REG/1999/1, 27 November 1999, Regulation No. 1999/1 on the Authority of the Transitional Administration in East Timor, Section 3.1 stated that ‘[u]ntil 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…’. The Detainee Ordinance creating the DMU was signed on 21 October 1999.

22. Kelly, M. J., ‘Responsibility for Public Security in Peace Operations’, in Durham, H. and McCormack, T.L.H., eds., The Changing Face of Conflict and the Efficacy of International Humanitarian Law (The Hague, Martinus Nijhoff 1999) pp. 141–172 at 151Google Scholar.

23. GC IV, Art. 64 states:

‘The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.’

24. See S/1999/1024, 4 October 1999, paras. 32, 53–56. For example, para. 32 states:

‘To ensure the stability, the underlying premises of the legislative power of UNTAET will be the continuing applicability of the existing law of East Timor, to the extent of its compatibility with the mandate of the Transitional Administration and its consistency with international standards of human rights.’

25. Regulation No. 1999/1 (27 November 1999), section 3 states:

‘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 [observance of internationally recognised standards], 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.’

26. S/RES/1272 (1999) 25 October 1999, para. 1.

27. Ordinance clause 7. This provision permitted INTERFET some flexibility to administer detainees within operational constraints. For example, it was recognised 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.

28. Ordinance clause 3.

29. Ordinance clause 33. These articles deal with criminal responsibility.

30. Ordinance clause 1.

31. For a discussion of attempts to prosecute persons who committed crimes following the East Timorese vote for independence following the development of INTERFET, see the report of S. Linton in Correspondents' Reports, this volume at p. XXX.

32. Art. 78 and Section IV.

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

34. 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.

35. Ordinance clause 12.

36. See for example, GC IV, Art. 42 — Grounds for internment or assigned residence, and Art. 78 – Security measures:

Article 42(1) ‘The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes the order necessary.’

Article 78(1) ‘If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most subject them to assigned residence or to internment.’

37. See discussion below.

38. See for example GC IV, Art. 42(2):

‘If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.’

39. See discussion below.

40. Ordinance clauses 8–11.

41. Ordinance clauses 15–21.

42. Ordinance clauses 22–24.

43. Ordinance clause 25.

44. Ordinance clause 14.

45. FORM 1 — Detention Report.

46. FORM 3 — Review by Reviewing Authority.

47. Ordinance clause 11. See also FORM 2 — Notification of Basis for Detention. All the detainees used the defending officer provided by the DMU.

48. Rights of a Detainee and Authority to Act.

49. All the detainees elected to use the defending officer provided by the DMU.

50. Ordinance clause 18.

51. See discussion in Part 3 below.

52. This ‘show cause’ procedure was based on GC IV, Art. 78 — Right of appeal:

‘(2) Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right to appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said power.’

53. See for e.g., GC IV, Art. 76 — Treatment of detainees:

‘(1) Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.

(2) They shall receive the medical attention required by their state of health.

(3) They shall also have the right to receive any spiritual assistance which they may require.

(4) Women shall be confined in separate quarters and shall be under the direct supervision of women.

(5) Proper regard shall be paid to the special treatment due to minors.

(6) Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and the International Committee of the Red Cross, in accordance with Article 43.

(7) Such persons shall have the right to receive at least one relief parcel monthly.’

54. Order 10.

55. Orders 3–6.

56. Orders 21 and 22.

57. Order 2.

58. Orders 23–26.

59. Order 7.

60. Orders 11–15. Provisions were made for detaining men and women in separate quarters and for detaining persons under the age of 18.

61. Order 16.

62. Order 17.

63. Order 18.

64. Order 19.

65. Orders 23–26 and 27.

66. Orders 23–26 and 29.

67. Order 28.

68. Order 21.

69. Order 22.

70. Security Council resolution 1272 (1999), 25 October 1999.

71. Regulation No. 1999/3 (3 December 1999).

72. S/2000/53, 26 January 2000, ‘Report of the Secretary-General on the United Nations Transitional Administration in East Timor’, para. 44.

73. See GC IV, Art. 77 — Handing over of detainees at the close of occupation.

‘Protected persons who have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory.’

74. COMINTERFET Order of 10 January 2000.