Events in East Timor are still unfolding, but it is not too early for
some retrospective analysis of the opportunities that were available to
Australia along the way. In a world without the strong bi-polar political
alignments of the Cold War, these situations will arise more frequently,
and international law is constantly evolving to deal with them.
East Timor has become a test of Australia’s traditional rhetoric
about supporting human rights and being a ‘good international
citizen’. Yet the Australian government could have acted earlier and in
a more decisive manner in some areas. Indeed, there are a number of
measures that still need to be taken, such as the following:
Even without the endorsement of the Security Council and without
Indonesia’s consent, a multi-national force could have been sent to
East Timor, on the basis of the doctrine of humanitarian intervention
in international law. There are three conditions for a legitimate
humanitarian intervention. First, there must be a massive violation of
human rights. Second, the State in control of the territory must have
failed to protect the people against the abuse of their rights. Both
these conditions were fully met here. Third, the use of force in
exercise of the right must be limited to the protection of people from
human rights violations. If the action taken was, for example, through
the creation of ‘safe havens’ where civilians can be safe (as with
the Kurds in northern Iraq) or by off-shore rescue of Esta Timorese
victims (as in Lebanaon in 1982) or to protect refugees (as in Rwanda)
then this last condition would have been satisifed in East Timor. In
other words, humanitarian intervention does not allow the full-scale
invasion of another country: it contemplates rapid and focussed
measures to end the massive violations of human rights.
This right should only be invoked in extreme
circumstances where the dangers are overwhelming. It was the legal basis
for NATO action earlier this year in Kosovo and was fully endorsed by the
Australian government in that context. It has been expressly accepted by
the United Nations in relation to exercises of self-determination. The
only differences between the situations in Kosovo and East Timor
identified in a recent statement by US Presidential spokesman, James
Rubin, are that East Timor is not in the same part of the world as Kosovo,
and that there is no Milosevic in East Timor. These are hardly plausible
grounds for a legal distinction between the two situations
- The Australian Parliament should enact legislation that makes it an
offence under Australian law for anyone to commit an act of genocide
or torture, a war crime or a crime against humanity, no matter where
it occurred (including in East Timor). This is required by
Australia’s obligations under human rights treaties and would have a
symbolic as well as a potential deterrent effect. Such legislation is
consistent with the decision in the Pinochet Case.
- The Australian government can recognise East Timor now as a
fully-fledged State in international law. After 98% voter
participation in a UN-sponsored referendum, almost 80% voted for
independence for East Timor. In a similar situation in 1992, a
referendum on independence was deemed successful in Bosnia-Herzegovina
(then part of Yugoslavia), with less than 70% of the population
supporting the referendum. At that time, there was a substantial
presence in Bosnia of the Yugoslav armed forces and violent conflict
broke out. Despite this, Bosnia was recognised as a State by the
European Union and the United States within a few days and was
admitted to UN membership within three months. Indeed, when the
Australian government recognised Bosnia as a State it called upon
"other Republics and the Yugoslav National Army not to interfere
in the internal affairs of Bosnia and Herzegovina." Such a
statement can be made even more strongly in regard to East Timor and
the presence of Indonesia in the territory of East Timor. Indeed,
under international law, it is unlawful for any other State to inhibit
this exercise of the right of self-determination either through force
(Indonesia) or through tacit acceptance of another State’s use of
force (Australia). For the Australian government to continue to
recognise Indonesian sovereignty over East Timor (contrary to the view
of the rest of the international community) in these circumstances is
both illegal and illogical. Formal recognition of East Timor’s
status will also send a strong message to Indonesia.
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About the Authors
Professor Hilary Charlesworth is Director of the Centre for International and Public Law at the Australian National University.
Robert McCorquodale is an Associate Professor in International and Human Rights Law at the Faculty of Law, The Australian National University.