International Criminal Law
402
A significant function of UNTAET’s mandate was the establishment of an effective
judicial system, which includes the administration of criminal justice. This was no
easy task, as prior to 1999 the East Timorese as a general rule were excluded from
public office or the civil service. Further compounded by the fact that 500,000 civilians
became internally displaced as a result of the 1999 events, there was no effective
local judiciary on the island.
33
Moreover, under such circumstances, it would have
been logistically impossible to prosecute offences that occurred during the 24 year
Indonesian occupation, even if an ad hoc tribunal of the ICTY type was to be set up.
A UN Commission of Inquiry, specifically established for this purpose, concluded
that an international tribunal should be set up, comprising both Indonesian and
East Timorese judges, but precluded the examination of cases referring to the period
of Indonesian occupation.
34
UNTAET, however, urged in part by Indonesian promises
that they would investigate and prosecute alleged offenders, decided to enhance
the local judicial system, albeit augmented with an international presence. This
development was not welcomed by the East Timorese, in part because they allege
they were not sufficiently consulted on this issue.
35
Finally, UNTAET established the Serious Crimes Project, for the prosecution of
serious criminal cases perpetrated in the period between 1 January and 25 October
1999, through the District Court of Dili. On the basis of its authority to adopt legislation,
it promulgated Regulation 2000/11,
36
s 10.1 of which gave the District Court exclusive
jurisdiction over the following offences: genocide, war crimes, crimes against humanity,
murder, sexual offences, torture. Section 10.3 envisaged the creation of Special Panels
composed of East Timorese and international judges. The final composition of the
Panels was elaborated through Regulation 2000/15,
37
s 22.2 of which requires that the
Panels be composed of two international and one East Timorese judge, whereas in
cases of special gravity or importance, it may be composed of three international and
two local judges. The judgments of the Panels can be appealed to the Court of Appeal.
Interestingly, s 10.4 of Regulation 2000/11 did not rule out the creation of a possible
ad
hoc
or other tribunal with jurisdiction over the same offences.
Section 2.1 of Regulation 2000/15 endowed the Special Panels with a species of
‘universal jurisdiction’ over the listed offences (although that term was not expressly
used), the correct interpretation of which would encompass any crimes irrespective
of the nationality of the offender or the victim, as long as the relevant offence was
either consummated or commenced on the territory of East Timor. In accordance
with s 2.4, the Panels do have jurisdiction over offences that occurred in East Timor
prior to 25 October 1999, which would cover the period during the Indonesian
occupation, but the applicable law for that period would be whatever Indonesian
criminal law existed during the relevant time. This is consistent with the principle
33
For an overview of the problems facing UNTAET, see H Strohmeyer, ‘Collapse and Reconstruction of
a Judicial System: The United Nations Missions in Kosovo and East Timor’, 95
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