ADF Operating Illegally In East Timor

Australian Defense Forces operating illegally in East Timor

Independent aid watchdog Aid/Watch today revealed that the Australian Defense Forces (ADF) in Timor Leste have been operating illegally, leaving ADF personnel open to criminal prosecution. The parliament of Timor Leste has not ratified an agreement by which the ADF was invited into the country.

AID/WATCH Co-director Flint Duxfield commented: "This is yet another example of how the Howard government's heavy handed approach to regional security and lack of regard for the laws of neighbouring states is likely to further exacerbate tensions in the pacific. The police component of the Enhanced Cooperation Program for Papua New Guinea fell over precisely because of this sort of illegality."

Aid/Watch member Dr Tim Anderson recently returned from Timor Leste. He reports that two legal processes are in train which challenge the legal standing of the ADF.

"A confidential legal opinion has confirmed that, as the Timor Leste Parliament has not ratified the May 2006 invitation for the ADF to enter the country, their presence as an armed force is illegal" said Dr Anderson.

This may have implications in two court cases. The first is a challenge in Suai from the families of four people killed by the ADF in April at Same, when they attempted to capture or kill army rebel Alfredo Reinado. Further, lawyers for Reinado have alleged ADF personnel executed two of the four men, by breaking their necks after they were captured wounded.

The second legal process is action by prosecutors and judges against Alfredo Reinado's group, which took part in armed rebellion and killings in May 2006. These prosecutors have also questioned the legal standing of the ADF.

The new Government of Timor Leste has suggested that dialogue is ongoing with the Reinado group, but independent international judges and prosecutors - lawfully exercising functions in the Timorese justice system - say the normal course of the law is being followed for these people, who are wanted for homicide and rebellion. A conflict may therefore be looming between the legal (prosecution-judiciary) and executive (President and ministers) branches of government.

However the Constitution of Timor Leste (Chapter II, sections 9 and 95.3) makes it clear that the National Parliament must approve international agreements and treaties, and that such agreements require full approval and official gazettal. This has not happened in the case of the initial invitation extended to the ADF.

"The legal consequence must be that the ADF carrying of arms, conducting searches, roadblocks and armed operations are illegal and subject to prosecution. Accusations of execution-style killings could also give rise to war crimes prosecutions" said Dr Anderson.

"The Howard government aggravated this problem in 2006, by refusing to submit the ADF to UN command. If Australian soldiers were under UN command today they would be protected by international law," said Dr Anderson.

On 26 May 2006 Timor Leste's President, Prime Minister and President of Parliament asked the Australian Government for an armed security force, to help deal with an armed rebellion and the collapse of the police. As events developed, Prime Minister Mari Alkatiri was forced to resign and the Foreign Minister (now President) Jose Ramos Horta was installed as Prime Minister.

As the emergency situation abated, a new government was sworn in and a UN Security Council resolution was passed. There was then an expectation that the ADF presence would be legalised by the parliament. There were several opportunities for this but Prime Minister Jose Ramos Horta did not move on the matter.

On the other hand, the Howard Government defied both East Timorese and UN requests to place ADF personnel under UN command. Instead, the ADF presence was maintained under an assumption that it had the support of a bilateral agreement.

The closest the Parliament came to reviewing this agreement was on 8 November 2006, when they passed a resolution requesting their Government to (i) have all foreign forces placed under UN Command and (ii) take into account the views of the Parliament in agreements over the use of foreign troops. This has not been done.

"The ADF, so far, have chosen to ally themselves with the executive branch, and in particular with former President now Prime Minister Xanana Gusmao. In doing this they have alienated the largest political party Fretilin, which now accuses the ADF of playing partisan politics" said Dr Anderson.

However, with the two legal processes, there is a serious risk that ADF personnel and their commanders may be subject to criminal prosecution.

Those who doubt that there is an independent judiciary with the will to do this should recall that former government Minister Rogerio Lobato was imprisoned for illegal distribution of weapons. His defense was that he was helping defend the state during a crisis, when the police force had collapsed.

"ADF personnel would probably try a similar defense, if legally challenged. But their claim that they were acting under the orders of President Xanana Gusmao, when they attacked and killed members of the Reinado group at Same, may not be sufficient under East Timorese law."

Dr Anderson concluded: "the only way to limit the damage at this stage would be to either (i) place ADF personnel under UN Command or (ii) withdraw them from the country".

ENDS

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