International Criminal Law
404
2000/15, nor international law in general, except for in the ICTY Statute, which in
any event is irrelevant for the purposes of the Special Panels, because Regulation
2000/15 is premised on the ICC Statute. The judgment was flawed in some other
respects, such as the omission of the fact that East Timor was occupied by Indonesia,
and that alone is enough under common Art 2 of the 1949 Geneva Conventions to
substantiate the existence of an armed conflict. Moreover, in the
Leki
case, which did
not involve crimes against humanity, the Panel made findings about Indonesia’s
role in the 1999 events, without any evidence submitted by the parties, and without
the issues being litigated, by relying on a test of ‘what even the humblest and most
candid man in the world can assess’.
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If such mistakes can be forgiven to the
inexperienced East Timorese judiciary, it is difficult to do the same with regard to
internationally appointed judges.
15.4 UNMIK AND THE KOSOVAR JUDICIAL SYSTEM
Until 21 March 1989 Kosovo was an autonomous region within the Socialist Federal
Republic of Yugoslavia (SFRY). In order to appease Serbian nationalism, in part of
his own making, the then President Milosevic removed Kosovar autonomy, in
violation of the SFRY Constitution. This was the starting point of mounting ethnic
tension, which culminated in the establishment of ethnic Albanian pro-independence
military movements, particularly the Kosovo Liberation Army (KLA), which clashed
with FRY—the SFRY had by then disintegrated—security and armed forces. Clashes
of this sort, and mounting military activity from both sides, had been reported since
1997, with evidence suggesting that both sides were responsible for serious atrocities.
By 1999, and with Milosevic having lost all international credibility, NATO
commenced a bombing campaign of dubious legality—if not complete illegality—
against FRY on 24 March 1999. By early summer of that year, with FRY having
sustained severe blows to its infrastructure and economy, it concluded an agreement
with NATO States on 9 June, whereby it agreed to remove its security forces from
Kosovo, while retaining its sovereignty over the territory. This agreement is reflected
in Security Council Resolution 1244 which was adopted on the following day.
Operative para 10 of the Resolution authorised the Secretary General to establish an
interim administration in Kosovo,
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including, as provided in operative para 11,
maintaining civil law and order. This task was part of the UN Interim Administration
Mission in Kosovo’s (UNMIK) mission.
Although not on top of UNMIK’s agenda, it had to decide how it would administer
criminal justice in Kosovo; that concerned issues of applicable criminal law,
organisation of courts, and possible establishment of special panels for serious
violations of humanitarian law. In its first Regulation, 1999/1,
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s 3 provided that
the laws applicable in the territory of Kosovo prior to 24 March 1999 were to apply
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