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Some Lessons from East Timor

By Hilary Charlesworth and Robert McCorquodale - posted Friday, 15 October 1999


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:

  1. 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

  2. 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.
  3. 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.

Other articles by these Authors

All articles by Hilary Charlesworth
All articles by Robert McCorquodale
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