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[2] Maintaining law and order is a multi-dimensional
effort that not only comprises the police but also the prosecution service,
judiciary
and correctional systems. In this brief article, I will argue that UN
civilian police operations must therefore be complemented,
from the outset of a
mission, by adequate judicial and correctional reform and reconstruction efforts
that are more than simply adjunct
police activities. After describing the
immediate post-conflict situation in East Timor in Part II of the article, I
outline the
main challenges the UN faced in rebuilding East Timor’s
judicial system in Part III. I then provide some brief suggestions
in Part IV
that could prove useful for the future management of post-conflict
situations.
[4] But despite this sweeping mandate, administering a justice system is no easy task when there is no system left to be administered, when the personnel needed to carry out judicial tasks have left or are tainted due to the perception of affiliation with the previous regime, when the court houses and related facilities have been looted and destroyed, and when the laws to be applied are politically charged and no longer acceptable to the population and its new political leadership.
[5] A panorama of devastation awaited the UN
staff upon their return to East Timor. Most towns and villages were all but
destroyed
and abandoned by their former inhabitants, cut off from transport and
communication and without any governmental superstructure.
The pre-existing
judicial infrastructure in East Timor was almost entirely destroyed. Most court
buildings were burned and looted,[3]
all court equipment, furniture, registers, records and archives, and –
indispensable to the practice of the legal profession
– law books, case
files and other legal resources were lost or burned. In addition, all judges,
prosecutors and lawyers, and
many judicial support staff who had been publicly
sympathetic to the Indonesian regime or, as members of the privileged class,
were
perceived as being sympathetic, had fled East Timor following the
announcement of the results of the popular consultation.
[7] All of these projects were aimed at establishing institutions
that are indispensable to the effective functioning of a judicial
system and
would make possible the effective maintenance of law and order in East Timor. I
will now briefly describe UNTAET’s
main tasks in this area.
[9] By Regulation No 1999/1, UNTAET had, in effect, decided that the laws which applied in East Timor prior to the adoption of Security Council Resolution 1272 (ie, the Indonesian laws) would apply mutatis mutandis, in so far as they were consistent with internationally recognised human rights standards, and in so far as they did not conflict with the mandate given to the mission by the Security Council, or with any other subsequent regulation promulgated by the mission.[5] This decision was made solely for practical reasons: first, to avoid a legal vacuum in the initial phase of the transitional administration, and second, to avoid a situation in which local lawyers, virtually all of whom had obtained their law degrees at domestic universities, had to be introduced to an entirely foreign legal system.
[10] In practice, however, this formula proved rather difficult to apply, because it did not actually spell out the laws or specifically identify the elements that were inconsistent with internationally recognised human rights standards. Rather, it required lawyers, many of whom were inexperienced, to engage in the complex task of interpreting the Penal Code or the Criminal Procedure Code through the lens of international human rights instruments: applying those provisions that met international standards, while disregarding those that did not and substituting the appropriate standard under international law. The potential difficulties are obvious. For example, whereas it is relatively easy to determine that a provision allowing for 20 or more days of detention without a judicial hearing[6] is in violation of international human rights standards, it is significantly more difficult for lawyers applying such a provision to define, in a consistent manner, the standard that should apply instead. The situation was further aggravated by the fact that only a few local lawyers were even familiar with the practical application of international human rights norms.
[11] Yet another challenge was the need to obtain, from the government that had just withdrawn, all the legislation comprising the applicable body of law, and translate all these laws in order to enable international experts to assist their local colleagues in the practical application of the formula contained in UNTAET Regulation No 1999/1.
[12] Finally, parts of the East Timorese community objected to the very idea of continuing the application of the same laws that had been used for more than two decades by the Indonesian regime, and which were, therefore, widely perceived as being tools of the Indonesian occupation of East Timor.
[13] Hence, despite the formula of UNTAET Regulation No 1999/1, the UN
mission had to conduct a comprehensive review of all the legislation
that was
pivotal to the establishment of an independent and impartial judiciary, and the
law and order sector more generally, and
amend or supersede these laws through
subsequent UN regulations.[7] In the
meantime, however, CIVPOL and the judiciary had to apply the existing
legislation on a daily basis, trying their best but
struggling to do so in
accordance with the requirements of UNTAET Regulation No 1999/1.
[15] As mentioned earlier, the exodus from East Timor of all Indonesian and pro-Indonesian lawyers, judges and prosecutors, as well as many law clerks and secretaries, had left the country with a huge void in experienced legal personnel. Under Indonesian rule, no East Timorese lawyers were appointed to judicial or prosecutorial office. As a result, there were no jurists in East Timor with any relevant experience in the administration of justice or the practical application of law. Not knowing how many trained jurists actually remained in the deserted towns and villages of East Timor, UNTAET, supported by its local staff and civil society groups, began to identify lawyers, law graduates and law students by word of mouth. The Australian-led International Force for East Timor (‘INTERFET’)[9] volunteered its services by dropping leaflets from aeroplanes throughout the territory, calling for qualified Timorese to contact any UNTAET or INTERFET office or outpost. Only a week later, this effort had led to a remarkable response: an initial meeting was held behind the Governor’s Building in Dili with a group of 17 jurists sitting on the floor (as the departing Indonesian security forces and pro-integration militias had left behind no chairs), discussing a possibility which, at the time, seemed unreal to them – their appointment as East Timor’s first judges and prosecutors.
[16] Two months later, more than 60 East Timorese jurists had formally applied for judicial or prosecutorial office. All applicants had completed law school – mostly in Indonesian universities – and were enthusiastic about the opportunity to play a historic role in the first criminal and civil trials of a free East Timor. However, only a few of these jurists had any practical legal experience, some in law firms and legal aid organisations in Java and other parts of the Indonesian archipelago, and others in para-legal positions with Timorese human rights organisations and resistance groups; none had ever served as a judge or prosecutor.
[17] As a next step, UNTAET then had to select from among this group the most capable candidates for judicial and prosecutorial office. Bearing in mind the political and symbolic significance that such appointments would have in a post-crisis situation, and the fact that the UN wished to act in sharp contrast to the practice of highly politicised judicial appointments that had been characteristic of the previous regime, it was essential for the UN to proceed in a transparent and professional manner that would give legitimacy to the process. UNTAET thus created a Transitional Judicial Service Commission (‘the Commission’),[10] which became the primary mechanism for the selection of judges and prosecutors and served as an important safeguard for the establishment of an independent and impartial judiciary. The Commission was designed as an autonomous body that received applications from jurists who were required to have, at a minimum, a law degree. It would select candidates for judicial or prosecutorial office based on merit and, eventually, make recommendations on appointments to the head of the UN mission. The Commission was also entrusted with drawing up codes of ethics for judges and prosecutors and serving as a disciplinary body reviewing complaints of misconduct.
[18] The Commission was set up as a five-member body, comprising three East Timorese and two international experts, and chaired by an East Timorese of ‘high moral standing’.[11] In order to build a strong sense of ownership over their new judiciary, and to inject as much domestic expertise as possible into the process, it was deemed essential that the majority of the Commission members be recruited from among local experts and that they be empowered to overrule the international members. It was anticipated that, over time, the international membership of the Commission would be phased out, but that a suitable mechanism would have taken root through which future local governments could carry out non-partisan judicial appointments.
[19] Following a rigorous interview and selection process conducted by the Commission, the Transitional Administrator of East Timor appointed the first ever East Timorese judges and prosecutors to office on 7 January 2000.[12] Further appointments have followed since.
[20] The rapid appointment of local judges and prosecutors was based on a multitude of considerations. Most pressing was the fact that East Timor urgently needed, within the first weeks of the establishment of the mission, a judicial review mechanism for those who had already been arrested and detained by INTERFET or would in the future be arrested by CIVPOL. Neither the UN nor the international community at large was prepared to deploy, upon such short notice, an adequate number of international lawyers for this purpose, not to mention lawyers who were familiar enough with the legal traditions of the administered territories.[13]
[21] In addition, political sensitivity to the euphoria and excitement that had followed the international community’s intervention in East Timor required that the general expectation that the international community would demonstrate an immediate commitment to domestic involvement in democratic institution building, especially in the legal sector, be accommodated. Hopes for self-determination and self-government meant that the appointment of local judges, which was an unprecedented move, unknown even under Portuguese colonial rule, took on enormous symbolic significance. Moreover, the immediate involvement of local lawyers would avoid, or at least minimise, the disruptive effect on the judiciary once the limited international funds that were being earmarked for the financing of international lawyers inevitably dwindled and forced the withdrawal of those lawyers.
[22] Finally, experience gained from other UN
missions has shown that the appointment of international lawyers leads to a
myriad of
practical concerns that can place a huge burden on missions in their
set-up phases, such as the costly requirements of translating
laws, files,
transcripts and even the daily conversations between local and international
lawyers, as well as the enormous time and expense incurred in
familiarising international lawyers with local and regional legal systems.
[24] In the absence of an international tribunal, the prosecution of suspected perpetrators of the September 1999 violence is, in large part, a matter for the domestic East Timorese judiciary and the parallel process in the Indonesian courts.[15] Given the potential impact on the reconciliation process both within East Timorese society and with Indonesia, it is essential that these trials be conducted expeditiously and, more importantly, in a professional and impartial manner, relying on credible and properly conducted investigatory and prosecutorial processes. Despite the high level of anticipation, it is the responsibility of the international community and its relevant counterparts within the East Timorese political leadership to resist rushing the newly-appointed judges and prosecutors into speedy trials of the accused who are currently in detention in East Timor.[16] The prosecution and trial of legally and factually complex criminal offences such as crimes against humanity needs careful preparation and should not be left solely to largely inexperienced lawyers, however committed they may be. In this context it is worth recalling that it took several years before trials began in the prosecution of similarly complex cases by the international ad hoc tribunals for the former Yugoslavia and for Rwanda, despite the high level of experience of the personnel of those tribunals.
[25] To reconcile the need for expeditious prosecution and trial of serious crimes with the requirement of ensuring experience and expertise in this process, UNTAET is currently establishing mixed panels comprised of both international and East Timorese judges at the District Court in Dili and at the Court of Appeal in Dili.[17] In addition, UNTAET has established a prosecution service comprising a special department for the prosecution of serious crimes, which is headed by an experienced international prosecutor[18] working alongside East Timorese and other international experts. In this respect, the Memorandum of Understanding between UNTAET and the Republic of Indonesia regarding cooperation in legal, judicial and human rights related matters will facilitate practical cooperation between courts and authorities in East Timor and Indonesia on such issues as sharing relevant information, obtaining evidence from witnesses, witness protection, forensic examinations, and, most important, the transfer of suspects to the jurisdiction of authorities and courts in East Timor.[19]
[26] Ultimately,
however, the challenge for UNTAET and the East Timorese in this area will be to
find the right balance between justice
and reconciliation in a society that
holds the principle of forgiveness at the core of its culture. The prosecution
and trial of
serious violations of international humanitarian and human rights
law must be accompanied by a comprehensive discussion on truth
and
reconciliation, and even amnesty for the perpetrators of less serious offences.
The current efforts of UNTAET and East Timorese
civil society to establish an
East Timorese Return and Reconciliation Commission is an important step in this
direction.
[28] The scope of jurisdiction of such mechanisms
must be carefully examined and an effort made to determine whether they should
simply
complement the newly established judicial system in East Timor or, in
some instances, be substituted for
it.[20] It is clear that, given the
financial constraints that will be faced by a future government, East Timor will
not be able to afford
to sustain a costly judicial system that penetrates the
entire island. Alternative methods and traditional dispute resolution mechanisms
are indispensable. On the other hand, traditional or alternative forms of
dispute settlement should not simply become a means of
covering up for a lack of
access to the ordinary justice system. To this end, UNTAET must further explore
the use of mobile courts,
regular out-of-court days, and the establishment of
‘justices of the peace’ in remote communities.
(a) The UN’s experiences in East Timor demonstrate that justice, and law enforcement more broadly, must be seen to be effective from the first days of an operation. The inability to react swiftly to crime and public unrest, particularly in post-conflict situations in which criminal activity tends to increase, and the failure to detain and convict suspected criminals promptly and fairly, can quickly erode the public’s confidence in the UN. The absence of adequate law enforcement and the failure to remove criminal offenders can affect both the authority of the mission and the local population’s willingness to respect the rule of law. In the worst of cases, this can push self-proclaimed vigilante forces to take law enforcement into their own hands and resort to illegal detention, which can threaten the safety and security of the local population and the international staff. It is thus mandatory for the UN, and the international community at large, to improve its rapid response capacity in this area. New, creative and open-minded approaches are required in this respect to reach across traditional lines of responsibility and bring about closer cooperation among international organisations, non-governmental organisations, academia, and military actors.(b) It is mandatory to develop a stand-by (not standing) network of experienced and qualified international jurists, which can be activated at any given time. In view of the significant practical differences between common law and civil law systems, these experts should be recruited in sufficient numbers from among jurists of both systems to ensure that they can adequately respond to the specific needs of the territory to be administered. Since quick deployment is crucial to the effectiveness and credibility of an operation at its early stages, the UN should create a network based on stand-by agreements with Member States, agencies, and academic institutions to facilitate the mobilisation of these jurists on short notice, within a few days if required.
(c) In order to avoid a law enforcement vacuum in the early days of a mission, it is crucial to establish ad hoc judicial arrangements facilitating the detention and subsequent judicial hearing of individuals who are apprehended on criminal charges. Whereas intuitively one would hesitate to involve military actors in this sensitive area of civil administration, there may be situations where there has been a complete breakdown of the judicial sector and civilian arrangements cannot be deployed rapidly enough. The quick deployment of units of military lawyers in such situations, either as part of a UN peacekeeping force or a regional military arrangement such as the security force in Kosovo (‘KFOR’) or INTERFET in East Timor, could fill the vacuum until the UN mission is staffed and able to take over what is ultimately a civilian responsibility.[21] In a parallel process, local personnel could be identified and trained gradually to take charge of the area. It would be understood that any such ad hoc arrangements would have to be in strict compliance with internationally recognised human rights and other relevant legal standards and should apply, once established, a set of UN-sponsored interim rules on criminal procedure.[22]
(d) It is necessary that legislation related to law enforcement be developed as part of a ‘quick start package’ for UN-administered territories. The need for a readily applicable set of minimum rules of criminal procedure (ie, on arrest and detention) and substantive criminal law, as well as rules governing the activities of the police, which are consistent with recognised international standards, has proven to be essential to the unimpeded functioning of the CIVPOL component in peace-building missions. First, CIVPOL need to act with legal certainty and in accordance with clearly spelt out legal provisions, in order to ensure that they can carry out their daily law enforcement activities effectively and without fear of breaching the law. Second, CIVPOL need a clear legal framework in order to train the future local police force in democratic policing. Third, newly appointed judges, prosecutors, and lawyers must have immediate clarity as to what the applicable law is in order to carry out their functions. In areas other than criminal law, UN regulations from previous missions could, where applicable, serve as model regulations.
(e) Judicial and legal training is not a ‘soft’ issue. Professional legal training in complex post-crisis situations such as East Timor extends beyond technical assistance. It is a pivotal element of capacity building and empowerment for the creation of a stable legal system. For example, given the lack of East Timorese experience in the administration of justice, the UN, in concert with its implementing partners, should ideally have been in a position to provide, immediately upon deployment, quick impact training and mentoring programs on core issues such as pre-trial standards, courtroom management, or drafting of detention orders. The initial establishment of a comprehensive database, including reference to potential providers of judicial training and their programs, would help to ensure a quicker response in this area.
(f) A functioning correctional system from the outset of an operation should be viewed not as a complementary effort but as inextricably linked to the creation of a functioning law enforcement mechanism. Despite the reluctance of many donors to finance correctional facilities, such a system cannot be established unless sufficient and quickly disbursable funding exists for immediate reconstruction efforts. Thus, the UN must make a concerted effort to convince donor countries of the need to fund this crucial task from the outset in the consolidated budget for the activities of a transitional administration, based on assessed rather than voluntary contributions. In this connection, it is indispensable for the UN to include a sufficient number of professional international prison guards and wardens in its mission planning and budgeting.
(g) Finally, the need to establish adequate arrangements for the prosecution and trial of individuals involved in serious violations of international humanitarian and human rights law must be given due consideration in the planning and set-up phase of an operation. In particular, in post-conflict situations where the international community’s initial involvement was governed by human rights concerns and the establishment of international tribunals is not a possibility, it is essential to provide the necessary resources for domestic arrangements from the outset. Adequate funding for these pivotal activities cannot be left to occasional voluntary contributions, but needs to be included in the regular mission budget. Any such efforts must be complemented by an open-minded approach to amnesties for lower-level perpetrators, truth and reconciliation processes, and, where applicable, the integration of traditional indigenous forms of justice.
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