* Originally submitted as a thesis for the Bachelor of Asian Studies (Honours) at the Australian National University. I extend my sincerest thanks to my supervisors, Dr George Quinn and Dr Daniel Fitzpatrick, for their advice and encouragement; to Professor James Cotton, Jim Dunn, Dr Edward Aspinall, Dr Andrew McWilliam, Letitia Anderson, Dr Susan Harris-Rimmer, Professor Jim Fox, Father Frank Brennan, Carolyn Graydon, Lia Kent, Professor Hilary Charlesworth, and Professor Tim Lindsey for their contributions and advice by way of interview; and to Alex McPherson, Bruce Hunt, Tal Karp, and Sue Tanner, for reading through my drafts. Further comments or discussion most welcome daniel.pascoe@gmail.com
Introduction
As a result of the militia violence committed during 1999 in East Timor, 1 between 1400 and 1500 mainly unarmed civilians were murdered, 2 74 percent of existing buildings were burnt to the ground, 3 and moreover, over 500,000 of East Timors population of 800,000 were either internally displaced, or else fled to nearby West Timor. 4 In what was a continuation of the Indonesian armed forces policy of brutality towards the East Timorese people since Indonesias occupation of the former Portuguese colony in 1975, a decision had been taken by Indonesian military personnel (in conjunction with certain civil and police officials) to set up militia units composed of local personnel, in order to terrorise the Timorese population into voting for the autonomy option in the popular consultation on East Timors political future on 30 August, 1999. 5 The severity and systematically- planned nature of the violence, together with the deliberate targeting of independence supporters constitutes substantial evidence that many cases of crimes against humanity were committed in East Timor during 1999. 6
Condemnation of the violence was expressed by foreign governments, the Catholic Church, Non Government Organisations (NGOs), and the United Nations Security Council, which demanded the perpetrators be brought to justice. 7 Accordingly, as part of the United Nations Transitional Administration in East Timor (UNTAET), the UN established the Serious Crimes Process, a hybrid justice system 8 operating out of the Dili District Court, in order to prosecute serious crimes such as genocide, crimes against humanity and war crimes (whenever they were committed),
1 Throughout this thesis, East Timor will be used when referring to events prior to 2002, whilst Timor-Leste will be used when referring to the period after 20 May 2002, when the Repblica Democrtica de Timor-Leste (Democratic Republic of East Timor) gained full independence. 2 Commission for Reception, Truth and Reconciliation in East Timor, Chega!: Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (CAVR), Dili, Timor-Leste: CAVR, 2005 (Chega), Part 7.2, 248. 3 James Dunn, East Timor: a rough passage to independence, Sydney: Longueville Books, 2003, 354; Megan Hirst and Howard Varney, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor, Available: http://www.ictj.org/images/content/1/2/121.pdf (March 20, 2006), 3. 4 Chega!, Part 7.5, 48; Hirst and Varney, 3; Harold Crouch, The TNI and East Timor policy, in Out of the Ashes: Destruction and Reconstruction of East Timor, edited by James J. Fox and Dionisio Babo Soares, Canberra: ANU E Press, 2003, 141-167, 159-160; Kingsbury, 77. 5 James Dunn, Crimes against Humanity in East Timor, January to October 1999: Their Nature and Causes, in Masters of Terror: Indonesias Military & Violence in East Timor in 1999, Canberra Papers on Strategy & Defence, No. 145, Canberra: Strategic and Defence Studies Centre, Australian National University, 2002, 60-98, 69. 6 Chega!, Part 8, 115. 7 United Nations Security Council Resolutions 1264 (15 September 1999) and 1272 (25 October 1999). 8 The Dili Special Panels for Serious Crimes (SPSC) were the first clear example of a hybrid criminal tribunal, so-called because of the fact that both international and East Timorese judges sat on the panels (two international judges and one East Timorese judge per panel), both domestic and international law was applied by the court, and also due to the shared financial responsibility of the constituent state and the United Nations (Hirst and Varney, 5; Susan Harris-Rimmer and Effi Tomaras, Aftermath Timor Leste: reconciling competing notions of justice, Canberra: Parliament of Australia, 2006, 5; Taina Jrvinen, Human Rights and Post-Conflict Transitional Justice in East Timor, UPI Working Papers 47 (2004), 49). Hybrid panels are therefore a combination of purely domestic criminal justice processes, and international criminal tribunals (such as the International Criminal Tribunals for Rwanda and Yugoslavia) Jrvinen, 49-50.
together with murder, torture and sexual offences committed during 1999. 9 In Jakarta, under significant international pressure, the Indonesian government agreed to establish an ad hoc Human Rights Court to try the Indonesian-based suspects.
Unfortunately, neither judicial process was ultimately able to bring those perpetrators most responsible to justice. 10 Despite considerable success in prosecuting lower-level militia members still residing in Timor-Leste, the Dili-based Serious Crimes Process found over 85 percent of its indictees out of its jurisdictional reach, residing in West Timor and elsewhere in Indonesia. 11
Moreover, the Indonesian government had reneged on a Memorandum of Understanding signed with UNTAET in 2000 that created a procedure for the transfer of suspects between jurisdictions. 12 Meanwhile, the Jakarta-based ad hoc Court, and its subsequent appeals processes, only succeeded in obtaining the conviction of a single accused: Eurico Guterres, an East Timorese militia leader. The proceedings in the ad hoc Court have therefore been widely denounced as a failure of justice, and have resulted in strident international criticism. 13
Much has been said and written on the future of the justice process for serious crimes committed in what is now Timor-Leste, by those individuals and institutions that have the potential to shape the future of this new nation. Some protagonists (including Timor-Lestes Commission for Reception, Truth and Reconciliation, international NGOs, and the leaders of the East Timorese Catholic Church) have argued for a revisiting of the trials in Dili and Jakarta, or the establishment of a new domestic or international mechanism to bring the leading perpetrators to face trial. Others (including East Timorese President Xanana Gusmao and some foreign governments) have instead favoured non-adversarial solutions, being unwilling to compromise their economic and security ties with the Indonesian government, and also claiming that restorative justice measures 14 would best serve Timor-Lestes
9 UNTAET Regulation 2000/15, Section 2. For the express purpose of dealing with the perpetrators of so-called less-serious crimes (eg arson, minor assault, property destruction and looting) and restoring the dignity of their victims through a Community Reconciliation Process, as well as establishing the truth regarding human rights violations in East Timor between 1974 and 1999, UNTAET Regulation 2001/10 established an independent Commission for Reception, Truth and Reconciliation (Comisso de Acolhimento, Verdade e Reconciliaco de Timor Leste, or CAVR). The success of the Community Reconciliation Process in bringing together victims and perpetrators of lesser crimes and offering restitutionary solutions (see Zifcak, 54, and Chega!, Part 9, 46-47) means that this thesis shall only be concerned with the serious crimes committed in 1999. 10 Prafullachandra Bhagwati, Yozo Yokota, and Shaista Shameem, Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, UN Doc S/2005/458 (26 May 2005) (Commission of Experts Report), [359], [374]. 11 Ibid., [48], [80]; Hirst and Varney, 16. 12 Hirst and Varney, 6; Commission of Experts Report, [80]-[82]. 13 Harris-Rimmer and Tomaras, 7; David Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, Available: http://www.ictj.org/images/content/0/9/098.pdf (20 March 2006), ii; Commission of Experts Report, [375]; Above the law; Indonesias security forces, The Economist, 14 August 2004, 48; Roper and Barria, 533. 14 To aid in the reconstruction of a post-conflict society, restorative justice measures include truth commissions, reparations for victims, and amnesties for perpetrators, as opposed to retributive justice measures, which encompass criminal trials and lustration for perpetrators (Kiss, 1).
future development as an independent nation. Overall, a wide range of institutional solutions have been suggested. However, many of the models that have been proposed are mutually exclusive. Moreover, despite the large amount of writing on this subject, commentators have seldom considered whether a particular measure is feasible or not, both from a practical and theoretical perspective. As President Gusmao has stated, when we demand an international tribunal we do not ask ourselves if we can actually do that or if we are capable of that. 15 This comment might be extended to every judicial and non-judicial solution that has been proposed.
In this thesis, after Chapters One and Two (which describe the historical developments that have led to the current situation), I will address this deficiency in the available literature by considering solutions to the question of justice for serious crimes committed in Timor-Leste during 1999 within a normative framework. Chapter Three outlines the judicial and non-judicial models proposed as solutions by the major individual and institutional players in Timor-Lestes future development. Chapter Four considers the practical benefits and drawbacks of each option, employing an approach of deductive analysis to eliminate those models that have not proved practically feasible and effective in the current political climate. Finally, Chapter Five considers those remaining institutional models within a transitional justice framework, and also considers their legality under international law. In the conclusion, a final set of strategies is presented, constituting the best approach to now take in response to what is a vital issue facing the leaders of Timor-Leste, as they seek a peaceful reconstruction of their new nation and a prosperous future.
15 Xanana Gusmao, Considering a Policy of National Reconciliation, speech to the National Parliament, Dili, Timor-Leste, 21 October 2002, in Timor Lives! Speeches of Freedom and Independence, Alexandria, NSW: Longueville Media, 2005, 119.
Chapter One
History of the Conflict in Timor-Leste and Legal Responsibility for Serious Crimes Committed during 1999
Introduction
The violent crimes committed in East Timor in 1999 should not been seen as a one-off conflict between rival local factions supporting and opposing independence from Indonesia. Instead, the overall historical context of the crimes must be considered, as evidence for the claim that senior Indonesian military, police and civil officials bear legal responsibility for the serious crimes that were committed during 1999, as well as the militia members themselves. The historical context shows that the violence committed bore many of the characteristics of the Indonesian military brutality witnessed in East Timor since Indonesias invasion in 1975, and moreover that the crimes of 1999 were systematically planned and executed. Accordingly, by analysing recent East Timorese history and the build-up to the events of 1999, the nature of the legal responsibility for those events becomes evident.
End of Portuguese Colonialism: 1974-1975
Portugal became a colonial presence in East Timor from the sixteenth century 16
and established a colonial capital in Dili in 1769. 17 Following the Carnation Revolution during April 1974, all of Portugals colonies, including East Timor, were given the right to determine their own political future, including the option of full independence. 18 A flimsy alliance for independent government between two of the three major East Timorese political parties that had recently emerged, Unio Democrtica de Timor 19 (UDT) and Frente Revolucionria de Timor Leste Independente 20 (Fretilin), soon fell apart, 21 leading to a brief but bloody civil war after UDT had attempted a coup against the Fretilin-controlled government in August 1975. 22 Fretilin secured victory in October 1975, and on 28 November proclaimed the independence of the Democratic Republic of Timor-Leste. 23
However, Timor-Lestes political independence did not last for long.
Indonesian Invasion and Occupation: 1975-1998
Following a covert destabilisation programme by the Indonesian military that had taken place throughout 1975, 24 Indonesia invaded East Timor on 7 December 1975, citing Cold War security concerns and the maintenance of territorial integrity. 25 The resulting condemnation from the UN Security Council was not heeded by the Indonesian government, mainly because of a low level of interest
16 Harris Rimmer and Tomaras, 1. 17 James J. Fox, Tracing the path, recounting the past: historical perspectives on Timor, in Out of the Ashes: Destruction and Reconstruction of East Timor, edited by James J. Fox and Dionisio Babo Soares, Canberra: ANU E Press, 2003, 1-28, 10. 18 Tomodok, 77. 19 Timorese Democratic Union. 20 Revolutionary Front of Independent East Timor. 21 Tomodok, 232. 22 Jrvinen, 12. 23 Ibid., 12. 24 Lloyd, 75. 25 Soares, 55; Lloyd, 76.
from the main international players in the region (the United States, United Kingdom, and Australia). 26 By the end of 1975 Indonesia had deployed around 20,000 soldiers in East Timor. 27 Then, on 31 May 1976, despite a lack of recognition of the invasion from the UN, and widespread international agreement that the invasion and occupation were illegal at international law, 28 President Suharto officially incorporated East Timor as Indonesias 27 th Province. 29
The invasion and its immediate aftermath brought great devastation on the East Timorese. Casualty estimates range between 60,000 and 100,000 lives lost during the first year of the occupation alone: mainly from disease and starvation, but also as a result of indiscriminate killings. 30 The overall legacy of the 24 year occupation was equally as brutal: the East Timorese Commission for Reception, Truth and Reconciliations (CAVR) 31 conservative estimate is that around 121,600 civilians died as a result of Indonesian policies towards East Timor. 32 Well known mass killings such as those in Lacluta (1981), Kraras (1983), and Santa Cruz (1991) contributed to these figures, 33 although their exposure in the Western media told only part of the full story of human-rights abuses.
The overall picture conveyed is that Angkatan Bersenjata Republic Indonesia (the Indonesian Armed Forces, or ABRI) 34 had little regard for the human rights of East Timorese during the Indonesian occupation, and that their brutal actions were condoned not only by the Indonesian government, but by many western governments, who continued to provide significant levels of military, diplomatic and economic support to Indonesia over the period of the occupation. 35 The exhaustively-researched CAVR Report 36 concluded that Indonesian military personnel were guilty of war crimes and crimes against humanity as a result their actions over this period. 37
The Fall of the New Order
26 Dunn, Crimes Against Humanity, 64. 27 Harris Rimmer and Tomaras, 1. 28 Ibid.; Australia was the only nation to unilaterally recognise Indonesias invasion. 29 Tomodok, 356. 30 Harris Rimmer and Tomaras, 1. 31 See Introduction, note 9. 32 This figure includes approximately 103,000 deaths due to hunger and illness and 18,600 deaths due to killings by force, 70 percent of which were committed by the Indonesian armed forces or their Timorese auxiliaries (Chega!, Part 6, 10, 13); however, the CAVRs upper estimate of unnatural deaths sustained between 1975-1999 in East Timor is 183,000 (Chega!, Part 6, 13); other estimates of the total number of deaths due to Indonesian policies have ranged between 120,000 and 230,000 (Harris Rimmer and Tomaras, 1). 33 Nevins, 213; Subroto, 236. 34 During Suhartos Orde Baru (New Order) regime, the Indonesian armed forces, which included the police force, were referred to as ABRI (Angkatan Bersenjata Republic Indonesia) (Crouch, 141, note 1). After the fall of the New Order in 1998, the police force was separated from ABRI, and the remaining three arms of ABRI became known as the Tentara Nasional Indonesia (Indonesian National Army, or TNI). 35 Lao Hamutuk, Lao Hamutuk on Reconciliation, Justice, and Reconstruction. 36 See Introduction, note 9. 37 See Chega!, Part 7.5, 47-48.
Pro-independence demonstrations and activism in East Timor significantly increased during the summer of 1998. 38 President Suhartos resignation during May of that year gave independence supporters new impetus, and vigorous opposition to a special autonomy package proposed by new President BJ Habibie was being shown in the streets of Dili over this period. 39 At a meeting attended by TNI officers and prominent East Timorese pro-autonomy activists on the 10 th or 12 th of August 1998, a campaign was officially launched to create pro-Indonesian militias. 40 In the following months, rumours began to circulate in East Timor that paramilitary groups were being mobilised for use against supporters of independence. 41 Accordingly, when President Habibie made a dramatic policy reversal and announced on 27 January 1999 that he would instead allow a UN- supervised popular consultation on East Timors political future to take place, 42 the foundations for a campaign of violence by autonomy supporters had already been laid.
Setting up the Militias
Militias were not a new concept in East Timor in 1999. The existence of local paramilitary units dates back to the Portuguese era, 43 and even more significantly, training and deployment of East Timorese paramilitary groups was used by the Indonesian military to pave the way for the December 1975 invasion. 44 During the late 1970s, East Timorese were again deployed as part of Hansip (civil defence) units that replicated those groups found throughout the Indonesian archipelago. Moreover, as recently as the 1980s, para-military forces were created by the TNI to oppose not only Falintil, 45 but also the growing phenomenon of passive
38 Hirst and Varney, 2; for example, three weeks after President Suhartos resignation, over 15,000 students staged a demonstration in Dili, demanding the release of Xanana Gusmao from prison in Indonesia, and for the holding of a referendum on East Timors political future (Dunn, East Timor, 341). 39 Robinson, Peoples war, 274; President Habibie and his advisors saw a new proposal for autonomy as a means of removing the East Timor issue from the international agenda and to placate independence supporters, at a time when international attention was sharply focussed on developments within Indonesia (Dunn, East Timor, 341). 40 Dunn, Crimes Against Humanity (at 69) lists the attendees at that meeting as Major General Adam Damiri (Chief of the Udayana Regional Military Command, which encompassed East Timor (Cohen, 68)), Colonel Tono Suratman (Military Commander of East Timor (Cohen, 68)), Joo Tavares (the first commander of the Halilintar militia in 1975), Eurico Guterres (the leader of Garda Paksi, a pro-Indonesian street gang, from 1995-1998 (Robinson, Peoples war, 312)) and Cancio de Carvalho (a former civil servant in the Justice Department who went on to become the leader of the Mahidi militia group (van Klinken and Bourchier, 116, 118)). Integration was to be protected at all costs, according to TNI officers Damiri and Suratman. Dunn (East Timor, 342) also argues that the preparatory planning for the militia launch was undertaken by Indonesian Generals Syafrei Syamsuddin and Zakky Anwar Makarim from July 1998. 41 Robinson, Peoples war, 274. 42 The ballot paper was to read Do you accept the proposed special autonomy for East Timor within the Unitary State of the Republic of Indonesia? or Do you reject the proposed special autonomy for East Timor, leading to East Timors separation from Indonesia? (Chega!, Part 3, 135). 43 Robinson, Peoples war, 272. 44 See Dunn, Crimes Against Humanity, 66-67. 45 Falintil (Forcas Armadas de Timor Leste Armed Forces of Timor Leste) was the armed wing of the resistance movement (Soares, 57).
resistance. 46 It is clear then that ABRI/TNI had a long history of supporting militia units in aid of its operations. 47
A collective memory of paramilitary activity had thereby been established that could be called on by senior TNI officials in their activation of the 1999 militia. 48
For instance, a number of the groups that perpetrated the violence in 1999 had been re-activated from the remnants of older battalions, and their old tactics merely re-adopted. 49
Two days after Habibies announcement that a ballot would go ahead, a Crisis Team on East Timor was established within Indonesian military circles, in order to wage a renewed campaign of violence against pro-independence forces, civilian and military. Heading the team was Major-General Zacky Anwar Makarim, who had resigned from his position as the chief of Indonesian military intelligence in order to take up the role. 50 The formation and reactivation of militia groups to oppose independence conveniently functioned as an illusion for the TNI-dominated team. Facilitating violent resistance to independence was designed to portray to the world that it was the will of the East Timorese people to remain part of the Indonesian state. 51 Moreover, the portrayal of East Timor as a violence-ridden province (especially if Falintil were to retaliate) would enable the Indonesian government to assert that an internationally-supervised referendum would fail. 52
Finally, there is some speculation that the violent attacks planned on independence supporters may also have been intended to serve as a lesson to other Indonesian provinces where there exist separatist movements, particularly Aceh and West Papua. 53
For these purposes, Zacky Anwar Makarim and his team formed militia units throughout the thirteen districts of East Timor, each group having a commander chosen by TNI officers. 54 The overall commander of the militia umbrella body (Pasukan Perjuangan Integrasi: Integration Struggle Force), Joo Tavares, was also appointed by TNI officers. 55 The weapons used by the militia groups were predominantly home-made (in order to portray an independence from the TNI), however some modern weapons were later transferred to militia units by Indonesian soldiers after militia members had handed over their original weapons as part of reconciliation agreements. 56 Apart from the TNIs role, it is also clear
46 Dunn, Crimes Against Humanity, 68. 47 Robinson, Peoples war, 302. 48 Dunn, East Timor, 342. Supreme Commander of the Militias in 1999, Joo Tavares, was to later insist that the militias had never needed any military training, as virtually everyone in the territory knew how to handle a gun (Robinson, Peoples war, 278). 49 Robinson, Peoples war, 301, 312-313. He lists those older groups as Rajawali, Makikit, Saka, Sera, Partisan, Combat, 1959/75 Junior, Team Alfa and Railakang. See also Soares, 61. 50 Kingsbury, 70; Chega!, Part 8, 114. 51 Dunn, Crimes Against Humanity, 69; Robinson, Peoples war, 275. 52 Soares, 65. 53 Kingsbury, 77; Susan Harris-Rimmer, interview by author, Canberra, 27 April 2006. 54 Dunn, Crimes Against Humanity, 70; Kingsbury, 71; see Soares (at 63), for a full list of the new militia groups established in 1999 and their leaders. 55 Dunn, Crimes Against Humanity, 70. 56 Crouch, 152; Kingsbury, 72.
that Indonesian Police and civil officials played a large part in recruiting, supervising, and financing the pro-integration militia groups. 57
The 6000-strong membership of the militias initially consisted of disaffected youth, those older members who had fought against Falintil at some stage after 1975, and those loyal to prominent East Timorese who had prospered as a consequence of integration. 58 They were joined by TNI members from West Timor dressed as locals, and former members of criminal gangs. 59 Later however, when the violence began, recruitment became more and more difficult. In some areas, a process of unofficial conscription took place with young men compelled to join their local grouping for fear of punishment if they failed to do so. 60 Hence a significant number of the militia personnel were acting under duress.
Intimidation and Violence before the Ballot: January August 1999
Following President Habibies announcement that a popular consultation would take place in January 1999, the first wave of violence began. 61 Scores of people were reported murdered in February and March 1999 while tens of thousands were made homeless. However, this first show of force by the militia was only a shadow of things to come. During April, the shelters that the homeless turned to, including churches, were the sites of some of the most gruesome massacres of 1999. The militias launch of Operasi Sapu Jagad (Operation Clean Sweep) in the early part of 1999 resulted in the Liquia church massacre 62 and the attack on the home of independence activist Manuel Carrascalo. 63 Against this background, on 5 May an official agreement between Indonesia and Portugal, under the supervision of the UN, was reached in New York, detailing the arrangements for the ballot. 64
Significantly, according to the Agreement, Indonesia was to provide security so that the plebiscite could go ahead. 65
57 Crouch, 151. The Indonesian Human Rights Commissions 2000 investigation into human rights abuses in Timor-Leste listed the Governor of East Timor at the time of the ballot, Abilio Soares, the Regent of Dili, Domingos Soares, as well as the Regents of Covalima, Liquia, Bobonaro and Lospalos as crimes against humanity suspects (KOMNASHAM, [56], [73]. Kingsbury (at 71) argues that the East Timorese component of the militias was hired by local bupati (regents). 58 Robinson, Peoples war, 277-278; Kingsbury, 71. 59 Robinson, Peoples war, 277. 60 Dunn, Crimes Against Humanity, 70, 79. 61 Robinson, Peoples war, 274; however, Dunn, East Timor, 346, argues that attacks bearing militia characteristics had previously been carried out on independence supporters in December 1998, and on 3 January 1999. 62 On 5 April, militia members shot and hacked to death over 40 unarmed civilians who were seeking shelter in a churchyard in Liquia (Soares, 64). 63 On the 17 April, following a militia rally attended by more than 5000 people outside the Indonesian Governors office, members of the Aitarak and Besi Merah Putih militia groups attacked unarmed refugees sheltering within the Dili residence of Manuel Carrascalo. Manuelito, Manuels son, was killed along with 14 other East Timorese (KOMNASHAM, [37]). 64 Dunn, East Timor, 347. 65 Chega!, Part 8, 96. The agreement charged Indonesian security forces with the responsibility for maintaining peace and security in East Timor in order to ensure that the popular consultation is carried out in a fair and peaceful way in an atmosphere free of intimidation, violence or interference from any side (Agreement between The Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, 2062 UNTS 8, Article 3).
Although the severity of the violence declined slightly during May with the arrival of UNAMET (United Nations Assistance Mission to East Timor) staff and international observers, 66 it was during this period that senior TNI officers, now realising that the integration option was not favoured by a majority of the East Timorese population, initially planned what they would do if voters were to reject the Indonesian governments offer of autonomy. During this stage of planning, the TNI was able to downplay the violence in April, claiming it was the result of a purely civil conflict amongst East Timorese, 67 whilst also covertly urging the continuation of the campaign of intimidation and harassment of independence supporters right up until the ballot. 68 The result of discussions between military leaders was that plans for a pembumihangusan (scorched earth operation) were formulated, with the intention of leaving East Timor in ruins and largely devoid of population. 69
Scorched Earth Operation after the Ballot
The ballot was held on 30 August 1999, and was followed by a number of minor incidents of political violence. 70 On 4 September the UN announced that 78.5 percent of voters had rejected Indonesias offer of autonomy. 71 This was the trigger for the most serious outbreak of violence, which continued until the end of September.
A summary of the most serious crimes perpetrated by the militias against civilians after the popular consultation are as follows:
the arbitrary killing of at least 560 mainly unarmed people (contributing to a total count of between 1400 and 1500 killings by pro-integration forces for the whole of 1999); 72
thousands of cases of serious injury; 73
instances of torture and ill-treatment, rape, sexual slavery and kidnapping, including approximately 182 cases of gender-based human rights violations; 74
the intentional destruction of 74 percent of the houses and buildings in East Timor through arson and ransacking; 75 and
66 Robinson, Peoples war, 274; however, international observers still reported some incidents of political violence designed to intimidate those East Timorese who had enlisted to vote after the opening of registration on 16 July (Harris Rimmer and Tomaras, 2). Soares (at 64) also reports that some attacks during this period were directed not only at civilians, but at the growing number of international NGO and humanitarian personnel helping preparations for the ballot. For example, seven UN staff members were injured in a militia attack in Maliana on 29 June (Dunn, East Timor, 349). 67 Robinson, Peoples war, 275. 68 Dunn, East Timor, 349. 69 Ibid., 350: two codenames were used for this operation: Operasi Guntur and Operasi Wiradharma. 70 Chega!, Part 3, 143-144. 71 Soares, 53, 70. 72 Chega!, Part 7.2, 245, 248. 73 Ibid., Part 7.5, 48. 74 Dunn, Crimes Against Humanity, 72; KOMNASHAM, [60].
the intentional destruction of public infrastructure, including schools, clinics and community centres 76
In addition to the many violent attacks on individuals, the post-ballot period also witnessed a massive displacement of persons. Around 250,000 East Timorese are believed to have travelled to West Timor. Some who were integration supporters left voluntarily, but most were forced to go against their will following threats of violence. 77 Approximately 300,000 more people became internally displaced within East Timor as they fled into the mountains. 78 They were later to face food and medical shortages until the arrival of UN relief later in September. 79
Finally, after two weeks of diplomatic negotiations that resulted in Indonesias increasing international isolation, President Habibie telephoned the UN Secretary- General to ask for assistance in restoring peace and security to East Timor. Thereafter, the passing of UN Security Council Resolution 1264 enabled INTERFET, an Australian-led international peacekeeping force, to restore law and order in East Timor. 80 By the end of September the force totalled 4000 soldiers, and had largely succeeded in its mission. 81
International Crimes Committed in 1999
The acts of violence committed in East Timor during 1999 encompassed serious breaches of human rights and humanitarian law. Based on the events described earlier in this chapter, at the very minimum, numerous breaches of the International Bill of Rights 82 took place in East Timor throughout 1999. 83 Did
75 Dunn, East Timor, 354; Hirst and Varney, 3. 76 Chega!, Part 7.5, 48. 77 Ibid., Part 7.5, 48; Hirst and Varney, 3; Crouch, 159-160. 78 Ibid., Part 7.5, 48. The total population of East Timor at the time was only around 800,000 (Kingsbury, 77). 79 Dunn, Crimes Against Humanity, 63; Annemarie Devereux, Accountability for human rights abuses in East Timor, in Guns and Ballot Boxes: East Timors vote for independence, edited by Damien Kingsbury, Melbourne: Monash Asia Institute, 2000, 135-155, 141, also states that militia members blocked the provision of emergency supplies of food, water and medical equipment to displaced persons in temporary camps. 80 Chega!, Part 3, 150-151. 81 Jrvinen, 17. 82 The International Bill of Rights consists of the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), and the International Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). 83 Devereux (at 141) lists, at a minimum, breaches of the rights to life (ICCPR, Article 6), liberty and security of person (ICCPR, Article 9), freedom of movement (ICCPR, Article 12), the rights not to be arbitrarily deprived of property (UDHR, Article 17), not to be subjected to arbitrary or unlawful interference with ones privacy, family, home or correspondence (ICCPR, Article 17), the rights to hold opinions (ICCPR, Article 19), freedom of expression (ICCPR, Article 19(2)), equality before the law (ICCPR, Article 26), an adequate standard of living (ICESCR, Article 11), the right not to be tortured (ICCPR, Article 7), and in all probability, breaches of the rights to work (ICESCR, Article 6), education (ICESCR, Article 13) and health (ICESCR, Article 12). The KOMNASHAM Report (at [22]) states that there were violations of the rights to life (ICCPR, Article 6), personal integrity and
these actions also constitute serious international crimes: crimes against humanity, genocide, and war crimes (these being crimes that have attained jus cogens status)? 84
A crime against humanity requires that: 1) murder, extermination, enslavement, deportation, imprisonment or deprivation of liberty, torture, sexual violence (including rape), persecution, abduction, apartheid or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health be committed; and 2) those acts come as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. 85 As described above, the violent attacks committed in 1999 clearly contain examples of the actions listed in the first element of crimes against humanity. For the second element, a vast amount of available evidence points to the killings and other violence having been carried out systematically [and] deliberately directed against the opponents of integration with Indonesia, 86
rather than constituting an unorganised, sporadic series of incidents.
War crimes, unlike crimes against humanity, 87 can only be committed in times of armed conflict. 88 From the definition of armed conflict enunciated by the International Criminal Tribunal for the Former Yugoslavia, it is apparent that the resort to arms must be mutual. 89 Accordingly, in the East Timorese context, it is difficult to argue that the crimes committed in 1999 took place during an armed conflict, due to the unilateral nature of the violence perpetrated by militia
liberty (ICCPR, Article 9), freedom of movement (ICCPR, Article 12), and property (UDHR, Article 17). 84 Jus cogens norms are rules of international law that have attained a peremptory status, and hence cannot be derogated from or contracted out of by States (Donald K. Anton, Penelope Mathew, and Wayne Morgan, International Law: Cases and Materials, Oxford and New York: Oxford University Press, 2005, 233). On genocide, crimes against humanity and war crimes being part of this group, see M. Cherif Bassiouni, Accountability for International Crimes and Serious Violations of Fundamental Human Rights: International Crimes: Jus Cogens and Obligation Erga Omnes, Law and Contemporary Problems 59 (1996): 63, 68: The legal literature discloses that the following international crimes are jus cogens: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture (emphasis added); see also Restatement (Third): The Foreign Relations Law of the United States, [702, n], and Amnesty International and Judicial System Monitoring Programme, Justice for Timor-Leste: The Way Forward, Available: http://web.amnesty.org/library/print/ENGASA210062004 (15 May 2006), [11.5]. 85 Rome Statute, Article 7. 86 Dunn, East Timor, 353; this point is also reiterated by Robinson, East Timor 1999, 248; Chega!, Part 7.5, 48, Part 8, 115, and KOMNASHAM, [21], [60]. 87 Devereux, 136, note 5. 88 Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Article 2; Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Article 2; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 2; Geneva Convention relative to the treatment of prisoners of war. Opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Article 2; see also Rome Statute, Article 8. 89 Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), [70]; see also Devereux, 146.
personnel. 90 Xanana Gusmaos directive from his prison cell in Jakarta, imploring Falintil forces and the general population not to fight back against the militias, 91 is evidence of this. If a long-term perspective is taken, analysing violent incidents right back to 1974-1975 (as the CAVR achieved), a conclusion that war crimes were committed in East Timor is possible. 92 However, it is doubtful that the same findings would arise merely by looking at the events of 1999. 93
Finally, the commission of genocide requires an act designed to destroy, in whole or in part, a national, ethnical, racial or religious group. 94 If it can be demonstrated that the militias actions were designed to destroy the East Timorese as a group per-se, then a finding of genocide might ensue. However, it is arguable that most of the killings and other violent acts evinced a political motive, as the attacks were directed against independence supporters (and foreign staff of international agencies). 95 Such acts would probably not constitute genocide. 96 It follows that any attempted prosecution of the crimes committed in 1999 in East Timor on the basis that they constituted crimes against humanity (which may be committed for political reasons) is most likely to be successful. 97
Legal Responsibility for Crimes Against Humanity
So who is legally responsible for the commission of such crimes against humanity? It is clear that the East Timorese militia-members themselves, the trigger-pullers, are individually responsible for breaches of international criminal law, as the actual commissioners of the crimes. 98
The pressing question however is whether responsibility can be attributed higher up the chain of command of the Indonesian military, police and civil administration? Individual responsibility, as defined in the Rome Statute, applies to individuals who commit, order, solicit, induce, aid, abet, or otherwise contribute to the commission or attempted commission of a crime. 99 The relevant actions and omissions of potentially culpable TNI soldiers and officers, together with Indonesian police and civil officials consisted of:
90 Devereux, 146; Chega!, Part 7.5, 48. 91 Chega!, Part 3, 129. 92 Devereux, 146-147; see Indonesian Invasion and Occupation: 1975-1998 (above). 93 Note that the Serious Crimes Unit (set up to prosecute the perpetrators of the 1999 crimes in East Timor) reached the same conclusion: see Chapter Two, note 167. 94 Rome Statute, Article 6. The relevant actions can include killing; causing serious bodily or mental harm; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction; birth prevention, and forcibly transferring children to another group. 95 Devereux, 149. 96 KOMNASHAM, [62]. 97 Devereux, 149. 98 Rome Statute, Article 25(3)(a); that there exists individual responsibility for international crimes committed in Timor-Leste in 1999 was reiterated in UN Security Council Resolution 1264 (15 September 1999). 99 Ibid., Article 25(3).
planning the campaign of pre-ballot intimidation and harassment of independence supporters and the voting public; 100
creating, recruiting, financing, arming and training the militia groups; 101
making no coordinated attempt to prevent violent attacks taking place, either before or after the ballot, and in some cases actively commanding or encouraging violent actions (especially in border areas); 102
some TNI soldiers, particularly those of East Timorese origin, actually participating in the violence; 103 and playing a major participatory and commanding role in the systematic forced deportation of many thousands of civilians following the ballot. 104
Therefore, based on the Rome Statute definition, individual responsibility attaches to those lower-ranking TNI members who directly committed, or ordered the commission of systematically-planned crimes before and after the ballot. 105
Moreover, those Indonesian military, police and civilian officials who managed and planned the violence would arguably bear individual criminal responsibility. 106
In addition to individual responsibility, military, police, and civilian officials may also be liable for the commission of international crimes by their subordinates by virtue of the doctrine of command responsibility. According to the Rome Statute, command responsibility requires proof 1) of a superior-subordinate relationship; 2) that the superior either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, and 3) that the superior failed to take all necessary and reasonable measures within his or her power to prevent, stop and punish the perpetrators. 107
100 See Chega!, Part 8, 100-101, for specific examples. 101 Ibid., Part 8, 99; Dunn, East Timor, 342; see Chega!, Part 8, 105-107, for specific examples of TNI, Police and civilian officials arming, training, and financing militia groups. 102 Chega!, Part 8, 103; Crouch, 161; Dunn, East Timor, 352. 103 Crouch, 161; KOMNASHAM, [56]. In many cases there was a significant overlap in membership between TNI units and militia units: see Chega!, Part 8, 103, for specific examples. 104 Crouch, 161; Dunn, Crimes Against Humanity, 66; allegedly commanding the mass deportation were Kopassus (Indonesian Special Forces) Officers, with TNI Major Generals Zakky Anwar Makarim and Adam Damiri also exercising some degree of command. 105 Robinson, East Timor 1999, 250. For specific examples, see Chega!, Part 8, 98-99. Overall, testimony detailing well over 2000 individual crimes committed by TNI and militia members acting together as perpetrators was provided to the CAVR. These crimes included 761 cases of illegal killings, 968 cases of torture and mistreatment, 883 cases of arbitrary detention, 553 cases of property damage and 11 cases of sexual crimes (Chega!, Part 8, 104). 106 Robinson, East Timor 1999, 251. Based upon the Rome Statute (Article 25) definition of individual responsibility, together with the judicial pronouncements on the doctrine in the Prosecutor v Tadic (Judgment) decision in the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia, Robinson concludes that individual criminal responsibility arguably attaches to any individual who 1) helped to establish the militias and to recruit their members; 2) made public statements in support of the militias; 3) granted the militias legal and political recognition; 3) provided militiamen with military training and guidance; 4) conducted joint combat operations with militia groups; 5) provided militiamen with weapons and/or ammunition, and 6) provided the militias with financial and/or material support. For Robinsons full list of managers and planners of the militia operations, see Robinson, East Timor 1999, 251-252. 107 Rome Statute, Article 28.
For the first element, effective responsibility for the command of TNI operations in East Timor rested with General Wiranto, the Indonesian Armed Forces Commander and Minister of Defence and Security. 108 Additionally, a number of senior army officers at the Armys headquarters in Jakarta exercised command authority over their junior troops in East Timor. 109 Local police chiefs in East Timor, the provincial governor, local bupati (regents), and Indonesian cabinet ministers directly involved in shaping Indonesias East Timor policy arguably also exercised varying levels of command over the TNI and militia groups in East Timor. 110
The second element of command responsibility also appears to be satisfied, as most of the relevant superiors undoubtedly knew of the nature and extent of the violence taking place in East Timor. 111 For example, General Wiranto made frequent visits to East Timor during 1998 and 1999, where he was informed by military liaison officers and UNAMET officials of the crimes taking place. 112
Moreover, other high-ranking TNI, police, and civil officials received regular written and oral reports from within the Indonesian militarys own hierarchical structure and from UNAMET officials, other Indonesian sources, foreign governments and international and domestic NGOs of the violence throughout 1999. 113 It is implausible to suggest that senior TNI, police and civilian officials, even if based in Jakarta, did not know what was going on.
The final element, that the authorities failed to prevent, halt and punish the commission of crimes against humanity, also appears to be satisfied. As discussed above, far from discouraging violent attacks, to the contrary, many TNI, police and civil officials actually promoted the commission of many of these crimes. Significantly, if the will to halt the violence had existed, appropriate measures could have been taken. 114 For example, when General Wiranto met with UNAMETs Ian Martin on 7 July 1999, he stated that if Falintil was willing to surrender its weapons to Indonesian police, he could assure that the militias would be similarly disarmed within two days. 115 A number of other statements made by General Wiranto and Colonel Tono Suratman 116 also evince their conviction that they could have halted
108 Robinson, East Timor 1999, 254. 109 See Robinson, East Timor 1999, 255, for a full list of suspects. 110 Chega!, Part 8, 112-113; Robinson, East Timor 1999, 255-257; the only two relevant changes in command responsibility during 1999 came first on 4 September, when the TNI assumed control of all security operations in East Timor, superseding the role of police and civil authorities. Second, on 7 September, President Habibie declared Martial Law in East Timor. Thereafter, all military, police and civilian operations came directly under Martial Law commander Major General Kiki Syahnakri, together with General Wiranto and President Habibie himself. 111 Robinson, East Timor 1999, 258. 112 This allegation is detailed in the Wiranto et al indictment issued by the Serious Crimes Unit in February 2003 (see Chapter Two, Flaws in the Proceedings: Dili). Similar allegations are made of Wirantos co-accused: Major General Zacky Anwar Makarim, Major General Kiki Syahnakri, Major General Adam Damiri, Colonel Tono Suratman, Colonel Noer Muis and Lieutenant Colonel Jajat Sudrajat (Robinson, East Timor 1999, 259). 113 Robinson, East Timor 1999, 259; see Chega!, Part 8, 109-110, 113, for more specific examples. 114 Robinson, East Timor 1999, 261. 115 Ibid. 116 See note 40 (above).
the violence if they chose to do so. 117 Taking into account that by August 1999 there were over 17,000 regular TNI troops stationed in East Timor, and moreover 6,500 police on active duty, it would be a fallacy to suggest otherwise. 118 Finally, there was an almost total failure by the TNI leadership to discipline their forces for the commission of such serious crimes, despite significant evidence of their direct involvement. Soldiers and officers were not held legally accountable on an internal or external basis. Instead a number of senior military officials were even promoted for their services in East Timor. 119
Conclusion
The tragic violence witnessed in East Timor during 1999 demands a search to establish legal responsibility for the perpetrators. Overall, legal responsibility for the crimes against humanity allegedly committed in East Timor during 1999 extends to not only the militia personnel who actually carried out violent attacks, but also to those TNI, Indonesian police and civil and administrative officials who contributed to the violence by ordering, aiding and abetting, and inciting the attacks. Further, those high-ranking officials who failed to prevent, halt and punish violent actions by the individuals directly involved are liable on the basis of command responsibility. The violence committed in 1999 was not the result of a civil war between East Timorese factions, as has been claimed in Indonesia, 120 but was a systematically planned operation designed to intimidate and punish those East Timorese who supported independence. It was a continuation of the military policies ruthlessly implemented throughout the Indonesian occupation.
117 See Chega!, Part 8, 107-108, for specific examples. 118 Ibid., Part 8, 108-109. 119 See Chega!, Part 8, 111, for specific examples. 120 See Muladi, 17-21.
Chapter Two
Judicial Responses to Serious Crimes Committed during 1999
Introduction: Setting up Judicial Mechanisms to Respond to the Crimes
Amongst UN member States, it was widely agreed that the violence committed in East Timor during 1999 included many examples of severe violations of international human rights and humanitarian law. 121 UN Security Council Resolutions 1264 (15 September 1999) and 1272 (25 October 1999) called for the perpetrators of such violations to be brought to justice. 122 Accordingly, after the establishment of UNTAET as the executive and legislative authority in East Timor from 25 October 1999, 123 a number of international teams conducted investigations into the violence. Foremost amongst these was the International Commission of Inquiry on East Timor (ICIET), established by a resolution of the UN Human Rights Commission. 124 In its January 2000 report the Commission recommended the establishment of an ad hoc international criminal tribunal to try the accused. However, reservations amongst potential donor nations regarding the costs of an international tribunal similar to those established for Rwanda and Yugoslavia, together with assurances made to the UN Secretary General by Indonesian President Abdurrahman Wahid that perpetrators residing in Indonesia would be brought to justice, precluded the formation of such an international judicial mechanism. 125
Discussion within the UN resulted in an agreement to set up a specially-constituted hybrid criminal justice mechanism in East Timor. 126 Accordingly, in June 2000 the Serious Crimes Unit (SCU) was established to conduct criminal investigations within a UN civilian police framework 127 and the Special Panels for Serious Crimes (SPSC) were established to function as the judicial bodies where perpetrators of serious crimes would be tried, operating out of the Dili District Court. 128 The SCU and SPSC together possessed unlimited temporal mandates to investigate and prosecute genocide, crimes against humanity and war crimes, and additionally possessed jurisdiction over cases of murder, sexual offences and torture occurring
121 Herbert D. Bowman, Letting the Big Fish get Away: the United Nations Justice Effort in East Timor, Emory International Law Review 18 (2004): 371, 378-379; Erica Harper, Delivering Justice in the Wake of Mass Violence: New Approaches to Transitional Justice, Journal of Conflict & Security Law 10 (2005): 149, 153-154; Roper and Barria, 525. 122 UN Security Council Resolution 1264, [1]; UN Security Council Resolution 1272, [16]. 123 UNTAET was created by UN Security Council Resolution 1272 (25 October 1999), six days after the Indonesian Parliament had ratified the result of the popular consultation (Jrvinen, 18). 124 Ibid., 41-42; the International Commission of Inquiry on East Timor (an independent body) was established following the earlier report of the three Special Rapporteurs of the UN Commission on Human Rights, based on their November 1999 mission, in which they outlined serious violations of human rights in East Timor, and also called for an international criminal tribunal to be established if Indonesia did not bring the culprits to justice (Robinson, East Timor 1999, 271). 125 Bowman, 381; Jrvinen, 44; Letter from the Minister of Foreign Affairs of Indonesia to the Secretary General. 126 See Introduction, note 8. 127 Jrvinen, 47; the SCU came under the leadership of a UN Deputy General Prosecutor for Serious Crimes, who operated under the authority of the Prosecutor-General for Timor-Leste after independence in May 2002 (Hirst and Varney, 5). 128 Jrvinen, 49; the SPSC consisted of two Trial Courts and an Appeal Court (Bowman, 389-390). The SCU and SPSC were authorised by UNTAET Regulation 2000/15. The entire process will henceforth be referred to as the Serious Crimes process, or regime.
between 1 January and 25 October 1999. 129 Following full independence for Timor-Leste on 20 May 2002, the SCU and SPSC operated within the financial and logistical framework of the UNs successor mission: the United Nations Mission of Support in East Timor (UNMISET 130 ), despite their formal integration within the East Timorese court structure by that stage. 131 The Special Panels ceased to operate altogether when the UN terminated its financial and logistical support for the Serious Crimes process in May 2005, in the context of an overall downgrading of its mission in Timor. 132
Only the perpetrators of serious crimes were to be brought to trial within the Special Panels. For the express purpose of making accountable the perpetrators of so-called less-serious crimes, 133 restoring the dignity of their victims through Community Reconciliation Processes, as well as establishing the truth regarding human rights violations in East Timor between 1974 and 1999, UNTAET established an independent Commission for Reception, Truth and Reconciliation. 134 The CAVRs findings and recommendations, released publicly in January 2006, will be considered in Chapter Three.
Parallel investigations into the 1999 violence were conducted by the Indonesian National Human Rights Commission (KOMNASHAM 135 ) from September 1999 to January 2000, by way of a specially established team: the Commission of Inquiry into Human Rights Violations in East Timor (KPP-HAM 136 ). The Commission was mandated to investigate human rights violations in East Timor from 1 January to 25 October 1999. 137 The KPP-HAM report found that Indonesian officials within the civil bureaucracy were responsible for financing and supporting certain militia groups and moreover that the TNI and Indonesian Police had deliberately assisted the militias in perpetrating a systematic and planned campaign of violence, comprising many instances of crimes against humanity. 138 The report also
129 UNTAET Regulation 2000/15, Section 2. 130 UNMISET was established by UN Security Council Resolution 1410 (17 May 2002). 131 Jrvinen, 53. 132 See UN Security Council Resolutions 1543 (14 May 2004) and 1573 (16 November 2004). Although the UN Secretary-General recommended in July 2006 that the investigative function of the SCU be resumed within the framework of UNMIT (United Nations Integrated Mission in Timor-Leste the new UN mission to Timor-Leste), such a move would not include the re-establishment of the SCUs prosecutorial component (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]). 133 The category of less-serious crimes did not include blood crimes (such as murder, rape and torture), and instead consisted of acts such as theft, minor assault, arson, the killing of livestock or the destruction of crops and additionally non-criminal actions that were considered to have caused harm to communities, such as collaboration or secretly providing information, which led to violations being committed (Chega!, Part 9, 11-12). 134 Stahn, 953; see Introduction, note 9. 135 Komisi Nasional Hak Asasi Manusia. 136 Komisi Penyelidik Pelanggaran HAM di Timor Timur. 137 KOMNASHAM, [6]; the KPP-HAM report looked at 13 specific incidents in detail, as well as several general categories of human rights abuses: systematic and mass murders; torture and ill treatment, enforced disappearances, gender-based violence, forced displacement of civilians and the scorched-earth campaign (at [22]-[28], [32]-[51]). 138 Ibid., [21], [63]; a full list of civil, military and police crimes against humanity suspects is found at [73].
implicated high-level Indonesian military officials who allegedly knew about the violence, but failed to prevent or halt its occurrence. 139 In March 2001, in response to recommendations outlined in the KPP-HAM report, and under significant international pressure, President Wahid issued Presidential Decree No.53/2001, establishing an ad hoc Human Rights Court on East Timor. 140 The ad hoc Court trials were completed in 2004, and the final appeal from the ad hoc Court to the Indonesian Supreme Court was completed in March 2006. 141
Whilst it was originally tacitly intended that the Jakarta ad hoc Human Rights Court would be the means to prosecute suspects residing in Indonesia, whereas the Special Panels would try East Timorese nationals, 142 a Memorandum of Understanding (MOU) between Indonesia and UNTAET was nonetheless concluded on 5-6 April 2000, putting in place a framework for cross-border cooperation regarding judicial, legal and human-rights matters. 143 The MOU explicitly outlined arrangements for evidence-sharing, the service of legal documents, powers of arrest, search and seizure, and most importantly the transfer of suspects between the two jurisdictions on request, in order to enforce arrest warrants. 144 However, no formal extradition agreement has ever been signed between Indonesia and Timor-Leste. 145
Serious Crimes Unit and Dili Special Panels for Serious Crimes: Summary of Proceedings
The SCU began issuing indictments in December 2000. 146 By the cessation of the Serious Crimes Process in May 2005, as a result of its investigative work, the SCU had issued 95 indictments against 440 accused persons. 147 The indictments issued were based upon a prosecution strategy of pursuing ten priority cases, so selected because of the number of victims involved, the seriousness and political significance of the crimes, and ease of access to evidence. 148 These indictments
139 Ibid., [56]. 140 Indonesian Law 26/2000 established four permanent Human Rights Courts for cases occurring after the legislation, and allowed the creation of ad hoc Human Rights Courts for cases which occurred before November 2000. In August 2001, newly-elected President Megawati Sukarnoputri further issued Presidential Decree No.96/2001, extending the jurisdiction of the ad hoc Court from cases that took place solely after the plebiscite in September, to include incidents that occurred during April 1999. 141 Siboro. 142 Jrvinen, 52. 143 See Memorandum of Understanding between the Republic of Indonesia and the United Nations Transitional Administration in East Timor regarding Cooperation in Legal, Judicial and Human Rights related matters. 144 Ibid., Sections 1-9. 145 Commission of Experts Report, [81]. 146 Hirst and Varney, 7. 147 Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 30. 148 Hirst and Varney, 7; the ten priority cases were: 1) the Liquia Church massacre of April 6, 2) the attack on the house of Manuel Carrascalo of April 17, 3) the attack of the Maliana Police Station of September 2-8, 4) the Lospalos case of April 21 to September 25, 5) the Lolotoe case of May 2 to September 16, 6) the Suai Church massacre of September 6, 7) the attack on Bishop Belos house of September 6, 8) the Passabe and Makaleb massacres of September and October,
led to a total of 55 trials proceeding in the Special Panels for Serious Crimes, resulting in 84 convictions and three acquittals. 149 Most of the jail sentences handed out were between seven and fifteen years in length. 150
The glaring discrepancy between the numbers of those tried and those indicted came as a result of Indonesias lack of cooperation in transferring suspects between jurisdictions, in direct contravention of the MOU of 2000. 151 339 suspects remain at large, the vast majority thought to be residing in Indonesia. 152
Flaws in the Proceedings: Dili
Obviously, the biggest hurdle faced by the Special Panels was the inability to bring suspects residing outside of Timor-Leste to trial. As a result, it is mainly low-level East Timorese militia members who have been made legally accountable for the events of 1999, rather than the Indonesian military, police and civil officials who are alleged to have planned, managed and commanded the violence (even though some of these individuals were actually named in SCU indictments). 153 While a total of 77 indictees became the subject of Interpol Red Notices, 154 this procedure has had little or no effect in procuring the suspects for trial, due to non-cooperation from Indonesia, and a lack of political will from other UN member states. 155 As a UN investigative commission noted in May 2005, despite the number of convictions secured against lower-level perpetrators,
9) a second Lospalos case and 10) cases of sexual violence in various districts between March and September (Hirst and Varney, 7-8; note 49). 149 One other defendant was ruled unfit to stand trial, and the prosecution case was either withdrawn or dismissed against 13 further defendants (Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 30-31). 150 Hirst and Varney, 9. 151 Anton Girginov, Extradition from Indonesia to East Timor and the Serious Crimes Process in East Timor (1999-2005), East Timor Law Journal 3 (2006): 2, [1]; The Indonesian government argued that the agreement did not become binding until it was ratified by parliament, which has never occurred. Moreover, the Indonesian government also claimed that the MOU only applied to the period of UNTAET administration, and so did not apply after Timor-Leste became fully independent in May 2002 (Hirst and Varney, 16). 152 Commission of Experts Report, [48]; Hirst and Varney (at 16) estimated that in June 2005, 304 suspects were residing in Indonesia. 153 Cohen, 11; Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 4. 154 A Red Notice, issued by Interpol (the worlds largest international police organisation) allows information contained in a warrant for arrest issued by a domestic jurisdiction (in this case, UNTAET/Timor-Leste) to be circulated worldwide, with a view to securing international cooperation in making a provisional arrest of the suspect abroad (Interpol, Fact Sheet: Notices, Available : http://www.interpol.int/Public/ICPO/FactSheets/GI02.pdf (5 September 2006); Interpol, Wanted, Available: http://www.interpol.int/Public/Wanted/Default.asp (5 September 2006)). Since the closure of the Serious Crimes Process in May 2005, the Prosecutor-General of Timor-Leste has also forwarded 10 arrest warrants to Interpol, which have resulted in the issue of new Red Notices (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [11]). 155 Hirst and Varney, 8; Nevins, 165; Amnesty International and Judicial System Monitoring Programme, [4.1].
the serious crimes process has not yet achieved accountability of those who bear the greatest responsibility for serious violations of human rights committed in East Timor in 1999. 156
The most serious example of this problem came after 24 February 2003, when the SCU issued its most renowned indictment, against General Wiranto, 157 as well as six other high-ranking TNI officers and Abilio Soares, the former civilian Governor of East Timor. 158 Amongst the charges, Wiranto was accused of crimes against humanity, on the basis of command responsibility. 159 After the high-profile indictment was issued, a lack of political support for the continued operations of the SCU and Special Panels was manifest from the way in which first the UN, and then the government of Timor-Leste distanced themselves from the indictment. Each claimed it was the others responsibility, in order not to compromise their relations with Indonesia. 160 Timor-Lestes General Prosecutor has refused to forward the arrest warrant to Interpol, hence Wiranto and his co-accused remain at large in Indonesia, 161 and are able to travel abroad with relative freedom. 162
In addition to those suspects presently outside of Timor-Lestes jurisdiction, there are other groups of perpetrators that were never the subject of SCU prosecution. First, it is estimated that around 830 murders committed in 1999 did not result in indictments, primarily due to resource, financial, and time constraints. 163 Second, many of the perpetrators of crimes other than murder have also never been the
156 Commission of Experts Report, [359], original emphasis. 157 Wiranto was the Indonesian Minister of Defence, and Commander of the Armed Forces at the time of the plebiscite (van Klinken and Bourchier, 216). 158 Hirst and Varney, 8. 159 Ibid., 10; see also Chapter One, Legal Responsibility for Crimes Against Humanity for more detail on the elements of command responsibility at international law. Except General Wiranto and Sub-Regional Commander Mohammed Noer Muis, all of the other accused were charged under both the command responsibility and individual responsibility doctrines (Commission of Experts Report, [207]). For a comprehensive dossier of information regarding the alleged involvement of General Wiranto and other senior Indonesian army personnel in crimes against humanity, see van Klinken and Bourchier. 160 Stephanie Frease, Playing Hide and Seek with International Justice: What Went Wrong in Indonesia and East Timor, ISLA Journal of International and Comparative Law 10 (2004): 283, 290; within hours of the indictments release, Fred Eckhard, Spokesman for the UN Secretary- General, told a press conference that all indictments produced by the SCU were issued by the Prosecutor-General of Timor-Leste, rather than by UNMISET. The Prime Minister of Timor-Leste, Mari Alkatiri, then berated the UN for abandoning its responsibility towards the justice process. East Timorese President Xanana Gusmao also claimed it was the responsibility of the international community to pursue justice through judicial processes that they had in fact created (Bowman, 397; Jrvinen, 52). 161 Commission of Experts Report, [70]-[73]. 162 If the Prosecutor-General of Timor-Leste were to forward the arrest warrant to Interpol for worldwide distribution, Wiranto and his co-accused would risk provisional arrest if they travelled outside Indonesia (Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?; Interpol, Fact Sheet: Notices; Interpol, Wanted). 163 Commission of Experts Report, [107]; Hirst and Varney, 17-18; of the approximately 1400 murders committed during the 1999 violence, at the conclusion of the Serious Crimes process only 572 had been the subject of indictments (Hirst and Varney, 30).
subject of indictments, for similar reasons. 164 Third, a loophole developed whereby those perpetrators of serious crimes such as murder who were consequently ruled ineligible for the CAVRs Community Reconciliation Processes were also not captured by the SCUs prosecution strategy, due to financial and resource constraints in pursuing lowest-profile suspects. 165 Therefore, whilst 84 individuals were convicted by the Special Panels, many potential suspects also escaped trial.
A further point relates to the nature of the charges actually laid. In many cases the political significance of securing convictions for crimes against humanity was sacrificed for simple murder charges, so as to ensure a cheaper or faster trial. 166
Similarly, war crimes were not the subject of SCU indictments, despite being within the jurisdiction of the mechanisms. 167 As with the above problems, financial and time constraints led to the adoption of this strategy, although a number of other factors were also significant. The inexperience of some UN investigators in pursing complex international-law based cases, the fact that at any one time the SCU only ever comprised 12 international investigators covering crimes committed in all 13 districts of Timor-Leste, and the constant speculation over the future lifespan of the Serious Crimes process during its operation contributed to this more streamlined prosecution strategy being adopted. 168
Although it is has been argued that proceedings within the Special Panels, when they did go ahead, represented a credible justice process that conformed to international standards, 169 the trials were not without their problems. Again, foremost amongst these was a lack of financial and human resources. 170 This shortcoming was especially acute for the Court of Appeal, which did not operate
164 These crimes include torture, sexual offences, destruction of property, and deportation cases, which were generally not pursued in investigations unless they were attached to murders, even if they might otherwise have formed elements of crimes against humanity (Hirst and Varney, 8, 19). The Commission of Experts Report (at [107]) lists the outstanding cases as including 60 possible charges of rape or gender-based crimes, and possibly hundreds of cases of torture and other acts of violence. 165 Carolyn Graydon, interview by author, Melbourne, 26 May 2006; the CAVR also created a procedure whereby if more evidence came to light through the Community Reconciliation Process that changed the classification of a less-serious crime to a serious crime, then the incident should be referred to the SCU for prosecution. Of the 27 cases referred by the CAVR, none was ever prosecuted, due to a lack of resources and the expiry of the SCUs mandate (Commission of Experts Report, [107]). A paradoxical situation therefore arose whereby the perpetrators of less- serious crimes had to submit to a justice procedure, whereas the perpetrators of more-serious crimes did not. 166 Hirst and Varney, 7, 17. 167 Ibid., 7; it has been suggested that if the 1999 violence was classified as an armed conflict (one of the elements of a war crime, as required under the Rome Statute, Article 8, and the Geneva Conventions, Article 2), this may have in fact strengthened the official Indonesian position that the violence consisted of a series of clashes between rival East Timorese groups, rather than a premeditated campaign of destruction and intimidation. On this point, see Chapter One, International Crimes Committed in 1999. 168 Hirst and Varney, 19-20; Commission of Experts Report, [60]. 169 Commission of Experts Report, [357]; Bowman, 387-388; Jolliffe, Human Rights Abuses and Impunity in East Timor - The Living Memory Project, speech delivered at the National Library of Australia, Canberra, 27 September 2006. 170 Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 5.
between November 2001 and June 2003, due to a shortage of international judges. 171 Moreover, in the two Trial Courts, no administrative support was provided to the judges, 172 translation and interpreting services were manifestly inadequate, 173 and the transcription of judgements was sometimes delayed, or absent altogether. 174
Financial resources also contributed to a disparity in the standard of legal representation between the prosecution teams and defendants, however under- funded the prosecution lawyers may have been. The Defence Lawyers Unit (DLU), created by UNMISET in September 2002, was severely understaffed, initially employing only one defence lawyer, which eventually grew to seven by April 2005. 175 The lawyers employed were generally inexperienced in dealing with the nature of their clients charges 176 and were not provided with interpreting and translation assistance, administrative support, or travel assistance in order to meet clients. 177 Also notable was the lack of defence witnesses for the first 14 trials that took place in the Special Panels. 178 Access to evidence, and not merely suspects, from Indonesia has been a significant problem faced by the Serious Crimes regime. 179
Finally, criticism has also been made of the jurisprudence of the Special Panels. The root of this problem is apparent from the fact in January 2005 it was announced that all 22 East Timorese judges, some of whom had sat on the Special Panels, had failed their probationary legal exams. 19 of the judges were hence stood down from their duties pending more training. 180 Moreover, with the international judges on the Panels, UNTAET initially struggled to find Portuguese- speaking judges with the requisite grounding in international law to accept posts in
171 Ibid.; a lack of judges was also a problem within the two Trial Courts, from time to time (Bowman, 389-390; Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 5). 172 See Commission of Experts Report, [127], for more detail. 173 Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 5. This problem was particularly significant, considering UNTAET regulations specified that the Courts must provide translation and interpreting services covering all four official languages of the Special Panels: Portuguese, Tetum, Indonesian and English (Bowman, 390). For example, see Public Prosecutor v Paulino De Jesus (18 November 2003, Trial Court), during which the language used in the hearing could not be understood by the defendant or his family members in the court gallery. 174 Bowman, 390; Hirst and Varney, 23; The Universal Declaration on Human Rights, Article 10, guarantees the right to a fair and public hearing. This arguably includes the right of the parties and the general public to see the way in which justice is administered, and to know the reasons for a judicial decision (Amnesty International and Judicial System Monitoring Programme, [3.8]). 175 Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?; Commission of Experts Report, [141]. By the closure of the Serious Crimes Process, the seven defence lawyers were accompanied by three defence assistants, two defence investigators, two interpreters/translators and five other language, logistics and administration assistants. 176 Commission of Experts Report, [367]; Hirst and Varney, 20. 177 Hirst and Varney, 20; Bowman, 392; Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?. 178 Bowman, 392; a number of potential defence witnesses were located in West Timor at the time of the first trials (Hirst and Varney, 20-21). 179 Commission of Experts Report, [148]. 180 Roper and Barria, 530-531; Commission of Experts Report, [135].
Timor-Leste, 181 hence some earlier decisions making little reference to international criminal and humanitarian law precedent. 182 Three specific examples of decisions that have been heavily criticised are: first, the overly onerous test used by some judges to satisfy a request for an arrest warrant the East Timorese Deputy General Prosecutor had complained that the legal burden to be satisfied for the granting of an arrest warrant was practically the same level as that required for a guilty verdict. 183 Second, inconsistent sentencing decisions evinced little coordination between judges. 184 A third and most important example was an Appeals Court decision in 2003 whereby the judges chose to apply Portuguese, rather than Indonesian law, in direct contravention of UNTAET Regulation 2000/15. 185
Jakarta ad hoc Human Rights Court: Summary of Proceedings
The Indonesian Attorney-Generals office sought the prosecution of 18 defendants in the ad hoc Court over the course of 12 trials, commencing in March 2002. 186
Those indicted were primarily members of the police and military who were in command at the time of the violence, in addition to a militia leader, the Regents of Covalima and Liquia, and the former civilian Governor of East Timor. 187
The trials led to only six convictions, all of which resulted in appeals to the High Court of Human Rights, and then to the Indonesian Supreme Court. Of the six appeals, five convictions were overturned. 188 Only the conviction of East Timorese-born militia leader, Eurico Guterres, 189 was upheld. Guterres began serving a 10-year jail term for crimes against humanity in May 2006. 190
Flaws in the Proceedings: Jakarta
181 Commission of Experts Report, [129]; Amnesty International and Judicial System Monitoring Programme, [3.4]. 182 Bowman, 391; Commission of Experts Report, [131]. 183 Hirst and Varney, 23. 184 Commission of Experts Report, [131]. 185 Amnesty International and Judicial System Monitoring Programme, [3.11]; in the case of Prosecutor General v Armando dos Santos (15 July 2003, Court of Appeal), on appeal the Court replaced the defendants conviction for murder with genocide, despite this crime failing to exist under Indonesian law (which was to continue to apply unless subsequently overridden, according to UNAET Regulation 1999/1). The Court argued that UNTAET Regulation 2000/15 (establishing the Special Panels and Serious Crimes Unit) was unconstitutional in its application to crimes committed during 1999, due to it breaching an East Timorese constitutional prohibition of the non-retroactivity of criminal laws. Hence the court employed genocide, which exists under Portuguese law, as the new charge. The potentially serious implications of the decision were in part resolved by a law adopted by the National Parliament on 8 October 2003 (Amnesty International and Judicial System Monitoring Programme, [3.11]). 186 Jrvinen, 45. 187 Commission of Experts Report, [169]-[170]; also provided here is a full list of indicted suspects and their charges. 188 Hirst and Varney, 12. 189 Guterres is the former commander of Aitarak, a notorious Dili-based pro-Indonesia militia group, and the former deputy commander of the Pasukan Perjuangan Integrasi (Integration Struggle Force) van Klinken and Bourchier, 164-167. 190 Anggota Komisi I DPR Simpati pada Guterres, Gatra, 9 May 2006.
The ad hoc Court trials and their subsequent appeals have been widely denounced by UN member states, international NGOs and human rights advocates as a failure of justice, due to the scant respect that was paid to international standards of criminal procedure, and the eventual acquittals of all defendants except Eurico Guterres. 191 Moreover, those who were convicted at first instance in most cases received sentences well below the minimum length prescribed by legislation. 192
Critics have alleged that the Indonesian government did just enough to satisfy the international community that a satisfactory justice process had been carried out, including the holding of the KPP-HAM investigation and the nominal holding of trials, without having any real intention to bring the perpetrators to justice. 193
The bases of criticism of the trials have been numerous. They begin with the original legislative mandate given to the ad hoc Court, as it could only try acts that occurred during either April or September 1999. 194 This meant that the court was effectively only able to indict those alleged to have failed to prevent the violence as it was taking place, rather than those military and civilian officials alleged to have been personally involved in setting up the militia operations. 195 Looking exclusively at these two one-month periods accorded with the official Indonesian government stance that the violence took place between warring East Timorese factions, with the TNI merely neutral observers. No systematic and organised pattern of human rights abuses by the Indonesian military could therefore be established. 196
Although the findings of the KPP-HAM investigation (the basis of the decision to establish the ad hoc Court) have been regarded as a credible representation of the nature of human rights violations in East Timor during 1999, 197 these findings were scarcely used at all in the framing of indictments. In particular, only four of the thirteen most prominent (and 670 overall) cases identified in the report were the subject of prosecutions by the Attorney-Generals office - incidents that occurred in only three of East Timors thirteen districts. 198 Moreover, most of the 32 high- ranking civilian and military officials named in the KPP-HAM report, in addition to
191 Cohen, ii; Commission of Experts Report, [370]; Above the law; Indonesias security forces, 48; Roper and Barria, 533; Report of the Secretary-General on justice and reconciliation for Timor- Leste, [14]; Linton, 357. 192 Cohen, 13; all those defendants found guilty by the ad hoc Court, except Eurico Guterres, were sentenced to either three or five years imprisonment, when their crimes against humanity convictions carried a minimum ten year sentence (Commission of Experts Report, [188]). 193 Harris-Rimmer; Graydon; Robinson, East Timor 1999, 273. 194 Nevins, 162; Linton, 357. 195 Cohen, 11; International Crisis Group, Indonesia: Implications of the Timor Trials, International Crisis Group Briefing Paper, Jakarta and Brussels: International Crisis Group, 2002, 4, 13; James Dunn, interview by author, Melbourne, 26 May 2006. 196 Commission of Experts Report, [225]; International Crisis Group, 4, 12; for an account of the commonly-held Indonesian position, see Muladi, 17-21. 197 Hirst and Varney, 4; Report of the Secretary-General on justice and reconciliation for Timor- Leste, [14]; Commission of Experts Report, [368]; Harris-Rimmer. 198 Amnesty International and Judicial System Monitoring Programme, [5.2]-[5.3], [6.3]; the four incidents that were the subject of prosecution were the Liquia and Suai Church massacres, and the attacks on the residences of Manuel Carrascalo and Bishop Belo.
General Wiranto, were never even indicted by prosecutors. 199 Only mid-level perpetrators were the subject of prosecution, rather than those at the top of the chain of command. 200
Undoubtedly the most common basis for criticism of the trials was the manifest lack of commitment from the prosecution. Avoidable weaknesses in the prosecution case were found in almost all instances, including the drafting of generic indictments that unnecessarily created multiple burdens of proof for prosecutors, 201
a failure to use all available evidence, 202 the use of other indictees as prosecution witnesses, 203 counsel often leaving much of the questioning of witnesses to judges 204 and the use of an unworkable prosecution strategy that focussed on individual incidents rather than the systematic nature of the crimes as documented in the KPP-HAM report and by international experts. 205 Some observers conclude that a lack of political will on the part of Indonesian government, in particular the office of the Attorney-General, was to blame, 206 although the presence of direct political (or military) pressure on prosecutors is of course very difficult to prove. It should be noted that a number of the judges worked extremely hard to make up for deficiencies in the prosecution case, and hence a few significant convictions at first instance could be obtained. 207 These efforts most notably included the guilty
199 Cohen, 14. 200 Amnesty International and Judicial System Monitoring Programme, [8]; Dunn, interview by author. 201 Amnesty International and Judicial System Monitoring Programme, [8]; Cohen, 51-52. The indictments used in the trials were mass produced and were not tailored to each individual defendants circumstances. In almost all cases the indictee was charged with command responsibility for a failure to prevent crimes against humanity committed by his subordinates, meaning the prosecution had to prove the existence of 1) a chain of command; 2) crimes against humanity and 3) a failure to control, as required by the Rome Statute, Articles 7 and 28. For a comprehensive comparison of the ad hoc Court indictments with SCU indictments, see Amnesty International and Judicial System Monitoring Programme, [7.1]. 202 Commission of Experts Report, [371]; Robinson, East Timor 1999, 273; specifically, Cohen (at 14) lists the failure of the prosecution to use evidence derived from 1) the KPP-HAM report; 2) UNTAET documents; 3) any independent investigation (such as the ICIET Report or the Report of the Special Rapporteurs see note 124 (above)); 4) many potential East Timorese witnesses, due to the courts failure to employ teleconferencing facilities until the very end of the trials; 5) previously concluded trials in the ad hoc Court; and 6) international observers of the Popular Consultation. 203 For example, during the trial of Tono Suratman (in which he was acquitted), 18 of the 26 witnesses were TNI soldiers, militia members, or civilian officials, including six witnesses who were defendants in other ad hoc Court trials (Amnesty International and Judicial System Monitoring Programme, [9.2]). 204 Cohen, 51. 205 Lindsey; Cohen, 14-15; prosecutors did not use techniques developed earlier in the jurisprudence of the International Criminal Tribunals for Rwanda and Yugsolavia (ICTR and ICTY) in establishing a systematic pattern of human rights violations in order to prove that these constituted crimes against humanity. The prosecution strategy instead accorded with the official Indonesian government position, presented above. This may have been a deliberate move, or alternatively merely as a result of an honestly-held belief, like many Indonesians, that there were never any crimes against humanity committed in East Timor (Cohen, 52). 206 Commission of Experts Report, [259]-[260], [375]; Cohen, 13; Linton, 357-358; Amnesty International and Judicial System Monitoring Programme, [6.3]. 207 Robinson, East Timor 1999, 273.
verdict and three-year sentence imposed on Adam Damiri, 208 despite the prosecutions extraordinary step in seeking an acquittal, on the basis that it had not proved any of the charges against the defendant. 209 However, in other cases where the judges were not quite as resourceful, or where they shared the commonly-held view that the violence was of a sporadic and spontaneous nature, convictions could not be obtained. 210
The trials were also characterised by the intimidation of judges and prosecution witnesses. 211 The TNI maintained a constant and overbearing presence in the courtrooms, with Kopassus and other soldiers brazenly displaying their weapons during proceedings. 212 Military defendants would also visit the other courtrooms when their trials were not in session. 213 There is evidence of a direct campaign of intimidation against judges who were likely to support convictions, through threatening meetings, phone-calls and emails. 214 This atmosphere was also hardly conducive to the comfort of prosecution witnesses. East Timorese victim- witnesses were accommodated in a safe-house at the Polri (Indonesian Police) compound in Jakarta, complete with a sign on the door of their quarters to that effect. 215 When arriving at the airport, the names of witnesses were sometimes announced over the public address system. 216 It is likely that the evidence such witnesses gave was compromised by fears for their safety. Moreover, perception of security risks in Jakarta prevented many prosecution witnesses from making the trip from East Timor at all. 217
Finally, the trials in the ad hoc Court displayed flaws that may have been unavoidable, given the inherent problems within the Indonesian legal system. 218
Possibly contributing to the unjust results in a number of the trials, these problems include: 1) the tendency in many instances for judges and prosecutors to be promoted not on the basis of their skill, but rather on their propensity to follow orders from within their own departments and from the political elite; 219 2) the inexperience of most Indonesian judges with international humanitarian and human rights law jurisprudence; 220 3) the general skill and numerical imbalance between
208 For more information linking Damiri (former Commander of the Udaya Military Region, which encompassed East Timor) to crimes against humanity committed in Timor-Leste, see van Klinken and Bourchier, 160-163. 209 Cohen, 12-13. 210 Amnesty International and Judicial System Monitoring Programme, [9.8]. 211 Cohen, 14. 212 Graydon; Roper and Barria (at 532), note that three-quarters of the court gallery generally consisted of TNI soldiers and officers. 213 Cohen, 56. 214 Ibid., 57. 215 Commission of Experts Report, [261]. 216 Cohen, 55. 217 Ibid. 218 Hirst and Varney, 4; Kent, interview by author. 219 Cohen, 47-48; Amnesty International and Judicial System Monitoring Programme, [6.3]; Commission of Experts Report, [240], [259]. 220 Roper and Barria, 532; Amnesty International and Judicial System Monitoring Programme, [6.4]; Commission of Experts Report, [259].
lawyers for the prosecution and defence in post-Suharto Indonesia; 221 4) a lack of resources available to prosecution lawyers and judges; 222 and 5) a culture of deference within the Attorney-Generals office toward the wishes of the military establishment 223 (considering that, for the 32 years of Suhartos rule, the Attorney- General had almost always been a high-ranking military officer). 224 Therefore, apart from problems unique to the ad hoc Court, a number of systemic problems within the Indonesian legal system may have meant that human rights trials of mid to high-ranking military, police and civilian officials were never going to be successful, regardless of the forum.
Conclusion: Evaluation of the Dili and Jakarta Trials in light of Criminological Justifications
As a means of reckoning with the serious crimes committed in 1999 in Timor- Leste, both UNTAET and the Indonesian Government initially committed to criminal trials of the alleged perpetrators. Criminal trials and custodial sentences have a number of theoretical justifications, 225 including retribution (punishment of the perpetrators), 226 deterrence (prevention of crimes in the future), 227 rehabilitation of perpetrators (so they may eventually re-enter society peacefully), 228 strengthening the rule of law (the notion that the law applies equally to all, and hence all crimes are punished equally), 229 and the creation of a historical record of the crimes. 230
However, it is arguable, based on the results of the two judicial processes, that very few of these aims were achieved. The inability of the SCU to complete its investigations, the incapacity of the Special Panels to try indictees out of its jurisdiction, and moreover the failure of the Jakarta ad hoc Court and subsequent appeals to secure the conviction of a single Indonesian national (except East Timorese-born Eurico Guterres) has effectively resulted in a state of impunity for many of the perpetrators of the serious crimes committed in 1999, and their
221 Cohen, 49-50, 54; during Suhartos New Order regime, often all that prosecution lawyers had to do in order to secure a conviction was to merely draft the indictment. Hence highly-skilled lawyers were not needed on prosecution teams. Although the situation is slowly changing, in Indonesia today most of the best lawyers work either as defence counsel or in NGOs: other recent examples of the relative superiority of defence counsel vis--vis prosecutors have been the trials of terrorist suspects, including the Bali bombers (Lindsey). 222 Cohen, 54. 223 Ibid., 49; Commission of Experts Report, [259]. 224 Roper and Barria, 532. 225 Further discussion on the justifications of criminal trials, particularly in the context of a comparison with restorative justice processes (such as truth commissions and amnesties), is provided in Chapter Five, Amnesties, Pardons or Criminal Trials? Impacts on Nation-Building from a Theoretical Perspective. 226 Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, Northwestern University Law Review 99 (2005): 539, 559. 227 Wayne Elwood, Crime & Punishment: recent decades have witnessed horrible atrocities. But a new system of international justice is slowly rising from the carnage, New Internationalist, 1 December 2005, 2. 228 Kiss, 11. 229 Albert V. Dicey, Introduction to the Study of the Law of the Constitution, 10 th ed., London: Macmillan, 1959, 202-203. 230 Drumbl, 593.
superiors. That most of the leading military, police and civilian suspects have not been convicted for their alleged actions means that in response to the theoretical aims listed above:
serious domestic and international crimes, including crimes against humanity, have gone unpunished; some members of the TNI and militia groups will arguably not be dissuaded from carrying out violent actions of a similar nature in the future; 231
these suspects have not been subject to rehabilitative measures, as were the perpetrators of less-serious crimes, through the CAVRs Community Reconciliation Process; 232
the development and strengthening of the rule of law has been severely compromised in Timor-Leste, 233 where the communitys general view is that one group of perpetrators (lower-level East Timorese militia members) has been punished, whilst a second group (Indonesian military and police officers) has escaped sanction; 234 and, a complete historical record, confirmed by legal evidentiary burdens, has not been created of the crimes, especially for the Jakarta trials. 235 It is significant that the ad hoc Court trials served to disseminate and legitimise (at least for a
231 For example, some militia members who returned from exile West Timor from 2000-2002 have been accused of fostering regional instability (Gusmao, Considering a Policy of National Reconciliation, 107-108). There has also been speculation that a failure in deterrence has contributed to the violence witnessed in Timor-Leste during April and May 2006 (Dunn, interview by author; Amnesty International, Timor-Leste: All parties must act resolutely to ensure justice for both current and past violations of human rights, Available: http://web.amnesty.org/library/Index/ENGASA570022006?open&of=ENG-2AS (5 September 2006); East Timor Action Network, ETAN Statement on Recent Events in Timor-Leste, Available: http://etan.org/news/2006/05dili.htm (10 May 2006); Jolliffe, Human Rights Abuses and Impunity). Finally, Amnesty International and Judicial System Monitoring Programme, Appendix I, note that whilst his appeal was pending in December 2003, Eurico Guterres was seeking to establish a pro- Indonesian militia group in West Papua; additionally, in 1999, after the Indonesian military left East Timor, Major General Adam Damiri and Brigadier General Tono Suratman were co-opted to assist military operations against pro-independence groups supporters in Aceh. 232 Kent, Community views of justice and reconciliation in Timor-Leste, 62; see also Chega!, Part 9, 33-34, 37-38, on the rehabilitative function of the Community Reconciliation Process for deponents of less-serious crimes. 233 Commission of Experts Report, [374]. 234 Kent, Community views of justice and reconciliation in Timor-Leste, 62; Powell, Timors Full Horror Revealed, 25; Harper, 158. Kent (Community views of justice and reconciliation in Timor- Leste, 62) notes that some East Timorese perpetrators found it confusing or unjust that only the little people should be held to account for their actions, while the big people, those who orchestrated the violence in 1999, continued to live with impunity There was a sense that these [fugitive] leaders continued to laugh at them behind their backs. Note however that it has also been argued that the Serious Crimes Process has significantly contributed to the development of the rule of law in Timor-Leste by improving the skills of judges, lawyers and other professionals (Commission of Experts Report, [58]). 235 Commission of Experts Report, [374]; Linton, 360; with the Serious Crimes Process, although the Commission of Experts Report (at [50]-[51]) noted that the prosecution in cases before the Special Panels has adduced sufficient evidence to demonstrate the contextual background of the events in 1999, substantiating an attack against the civilian population which was widespread and/or systematic, the inability of the SCU to complete investigations into crimes other than murder meant that the SCU [was] not able to establish a comprehensive and complete documentation of the diverse nature of the crimes committed during 1999.
domestic audience) the Indonesian militarys erroneous view that the violence witnessed in 1999 was the result of a civil war between East Timorese factions, with the TNI merely innocent bystanders. 236
What direction should be taken in the future? Although the mandate of the Special Panels has now been officially transferred to the domestic court structure of Timor- Leste, very little work is likely to continue on unresolved investigations and cases without significant international support. 237 Moreover, with the final appeal from the Jakarta ad hoc Courts verdicts handed down in March 2006, 238 all domestic judicial processes in Timor-Leste and Indonesia able to respond to the serious crimes of 1999 have been exhausted. However, based on the deficiencies of the two processes in meeting the theoretical justifications of criminal trials described above, there appears the need for further institutional responses. The options that have been proposed are outlined in Chapter Three.
236 Linton, 360; Amnesty International and Judicial System Monitoring Programme, [9.8]; Commission of Experts Report, [222]-[223]. 237 See Hirst and Varney, 26-28; after 2002, the Serious Crimes process was almost entirely funded by contributions from UNMISET (Sukehiro Hasegawa, The Future of the Serious Crimes Process in Timor-Leste, Available: http://www.unmiset.org/ (20 April 2006)). However, theoretically at least, those suspects returning to Timor-Leste face the threat of arrest and prosecution. A number of Serious Crimes suspects returned to Timor-Leste during August, September and November 2005, and are now in pre-trial detention (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [10]; Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 31). 238 Siboro.
Chapter Three
Institutional Models Favoured by Various Parties
Introduction
There has been no unified response to the problems experienced by the judicial processes in Dili and Jakarta. Various parties, whether they be individuals, investigative commissions, NGOs or governments, have espoused differing views on whether or not these judicial processes should be revisited at al l, let alone the way that this might be achieved. This chapter will set out the views of the various players on the results of the Serious Crimes Process in Timor-Leste and the ad hoc Human Rights Court trials in Jakarta, paving the way for a discussion of the advantages and disadvantages of each approach and ultimately a judgement on the most appropriate course of action in the later chapters of this thesis.
Victims of the Violence and their Family Members
Whilst it is difficult to obtain a cross-section of opinion on the Serious Crimes Process and Jakarta trials from victims of the violence and their families, considering there were casualties and perpetrators on both sides of the pro and anti independence divide, 239 it is nonetheless apparent that most victims and their families have reacted with disdain at the outcomes of the trials. 240 The sense of injustice over the impunity enjoyed by many perpetrators has been compounded by the fact that it has been East Timorese deponents who have been imprisoned, whilst Indonesians have almost entirely escaped punishment. 241 In this sense, it is widely perceived in East Timorese society that retribution has not been distributed in an even-handed manner: the East Timorese trigger-pullers have been made accountable for their actions, but the TNI, civil, and police officials who are alleged to have planned and commanded the violence enjoy freedom. 242
Moreover, many victims and their families are concerned that their ordeals are likely to compromise the chance of their children competing on an equal footing in independent Timor-Leste. 243 For example, the death or disability of a primary- breadwinner, the rape of an unmarried woman, the destruction of a home or of community infrastructure can be an enormous economic burden to bear in a developing nation. Despite Timor-Leste gaining independence, some victims feel they are merely mate restu, or left-overs from the dead. 244 For victims, the unjust outcomes of the Dili and Jakarta trials are only multiplied by their poverty. 245
Although no one set of measures will be able to satisfy the entire victim community, 246 three important steps can be identified from the above
239 Frank Brennan, interview by author, Canberra, 3 May 2006. 240 Chega!, Part 11, [7]; Zifcak, 54. 241 Powell, Timors Full Horror Revealed, 25; see also Kent, Community views of justice and reconciliation in Timor-Leste, 62, for an account of the similar views of many East Timorese perpetrators in this regard. 242 Kent, Community views of justice and reconciliation in Timor-Leste, 62; Powell, Timors Full Horror Revealed, 25; Harper, 158. 243 Chega!, Part 11, [12.3]. 244 Kent, Community views of justice and reconciliation in Timor-Leste, 63. 245 Stanley, 593. 246 Chega!, Part 11, [7].
considerations, in order to satisfy the grievances of victims and their families. First, the Indonesian commanders and planners of the scorched earth policy should be brought to face effective criminal justice. 247 Dunn argues that even if pardons are eventually granted to currently-imprisoned East Timorese militia members, the families of many victims would still be satisfied, so long as the planners of the violence were also prosecuted. 248 Harper further notes that in East Timorese culture, a custodial sentence of any length would in many cases provide sufficient satisfaction for victims, in contrast to the western criminal justice mantra that the punishment must fit the crime. 249 Second, a comprehensive program of reparations will assist victims families greatly in dealing with the financial legacy of the human rights violations they have suffered. 250 Many victims have stated that they do not care where reparations come from, as long as they receive enough money and assistance to rebuild their lives. 251 Finally, although it is not a universally-expressed wish, a number of victims have emphasised the importance of confession and apology from the perpetrators. 252
Recommendations of the Commission for Reception, Truth and Reconciliation
Part of the CAVRs mandate was to make recommendations concerning:
reforms and other measures, whether legal, political or administrative which could be taken to achieve the objectives of the Commission, to prevent the repetition of human rights violations and to respond to the needs of victims of human rights violations. 253
Many of the recommendations made by the CAVR in Chega!, 254 its Final Report, are therefore not made in direct response to the 1999 violence and the subsequent trials of perpetrators but are instead focussed on preventing a recurrence of violations of the past. 255 Nonetheless, the Commission makes a number of observations regarding the SCU/Special Panels, and Jakarta ad hoc Court. Regarding the justice process, the CAVR implores that:
[Timor-Leste] cannot be expected to bear the brunt of pursuing the daunting task of justice on its own. [The Commission] is further concerned that the State of Indonesia has never shown a genuine will to bring to book the perpetrators [of serious crimes]. Therefore the Commission believes that the definitive approach to achieve justice for the crimes committed in Timor-
247 Kent, Community views of justice and reconciliation in Timor-Leste, 64; Pigou, viii; James J. Fox, interview by author, Canberra, 28 April 2006. 248 Dunn, interview by author. 249 Harper, 184. 250 Chega!, Part 11, [12.2]-[12.3]; Harper, 159. 251 Harper, 178. 252 Pigou, ix; Dunn, interview by author. 253 UNTAET Regulation 2001/10 (13 July 2001), Section 21.2. 254 Enough! in Portuguese. 255 Chega!, Part 11, 2.
Leste should hinge critically on the commitment of the international community, in particular the United Nations. 256
Accordingly, the Commission recommends that:
1. The SCU and Special Panels have their mandates renewed, and sufficient support from the UN given to ensure their effective operation; 257
2. Indonesian authorities launch renewed investigations and prosecutions of those persons who bear command responsibility for human rights violations, 258 moves necessarily accompanied by reforms strengthening the independence and efficiency of the Indonesian judicial system; 259
3. Indonesia transfer those suspects indicted by the SCU to East Timorese authorities for prosecution, 260 and moreover provide the government of Timor- Leste access to documents detailing Indonesian administrative and military involvement in the 1999 violence; 261
4. the Indonesian government and Indonesian businesses that profited from war- related activities in Timor-Leste pay reparations into a trust fund for victims established by the CAVR; 262 and, 5. third party nations endeavour to transfer those indicted by the SCU into the custody of East Timorese authorities, or else exercise universal jurisdiction 263 in prosecuting those indictees in their domestic courts, and moreover seek to freeze the foreign-owned assets of suspects and place travel bans upon them. 264
256 Ibid., Part 11, [7.1]. 257 Ibid., Part 11, [7.1.1]-[7.1.2]; this recommendation urges that the mandates are not only restored in order to investigate and prosecute those serious crimes committed in 1999, but also extended so as to examine cases (including the incidents specifically named in [7.1.3]) from the entire period of Indonesian occupation (1975-1999). As this thesis is primarily concerned with the events of 1999, the recommendations pertaining to this period will be focussed upon. 258 Ibid., Part 11, [7.1.5]. 259 Ibid., Part 11, [7.1.11]. 260 Ibid. 261 Ibid., Part 11, [10.10]; the Report makes specific reference here to the Liquica Church Massacre (6 April 1999); the killings at Cailaco (12 April 1999); the attack on Manuel Carrascalos house in Dili (17 April 1999); the killing of two students at Hera, Dili (20 May 1999), the Suai Church massacre (6 September 1999), the Maliana police station massacre (8 September 1999), the murder of church personnel and their accompanying journalist in Lautm (25 September 1999), massacres in Passabe and Maquelab in Oecusse (September-October 1999) and massacres in Nitibe in Oecusse (October 1999). 262 Ibid., Part 11, [10.16]-[10.17]. 263 Universal jurisdiction is the basis of jurisdiction invoked by some nation-states in conducting domestic prosecutions for crimes which attack the interests of all states or which are against certain fundamental principles (such as principles of human rights that have attained status as jus cogens [peremptory norms of international law]), (Anton, Mathew and Morgan, 71, 233; see also the International Court of Justices pronouncements in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment), [2002] ICJ Rep 3, at 75-79). The supporters of universal jurisdiction claim that it constitutes the new magic bullet in the fight against impunity for massive violations of human rights and humanitarian law (Reydams, 1). 264 Chega!, Part 11, [7.1.12].
If such measures fail to achieve a sufficient measure of justice, the Commission recommends that the Security Council establish an international criminal tribunal for Timor-Leste, pursuant to Chapter VII of the UN Charter. 265
One further innovative aspect of Chega! was the identification of third party beneficiaries (comprising nation-states and corporations) as bearing direct responsibility for serious crimes that have been committed in Timor-Leste, not only in 1999 but also dating back to the beginning of the Indonesian occupation. 266 The Commission insists that:
The conflict in Timor-Leste [between 1974 and 1999] was not primarily an internal conflict but one of foreign intervention, invasion and occupation that violated international law and human rights which the international community was duty bound to protect and uphold. 267
Accordingly, the Commission recommends that those nations that engaged in military cooperation with Indonesia between 1974 and 1999 apologise to the people of Timor-Leste, and that the Permanent Members of the UN Security Council assist the government of Timor-Leste with the provision of reparations to victims. 268
UN Commission of Experts
A Commission of Experts was created by the UN Secretary-General in February 2005 as a result of widespread international criticism over the performance of the Jakarta ad hoc Court and the inability of the Special Panels to prosecute any senior Indonesian military and police figures. 269 Its mandate was to review the effectiveness of the two processes in achieving justice and accountability for the crimes committed in East Timor, identifying any obstacles faced by the mechanisms in pursuing these functions, and to make recommendations to the UN Secretary-General in order to facilitate the accountability of perpetrators and to aid reconciliation within Timor-Leste. 270
The Commission issued its final report in May 2005. On the SCU and Special Panels, the Commission found that international standards were generally adhered to. 271 However, those most accountable for the violence, suspects outside of Timor-Leste, had not been brought to justice. 272 Moreover, the situation was
265 Ibid., Part 11, [7.2]. 266 Kent, interview by author. 267 Chega!, Part 11, [1], emphasis added. 268 Ibid., Part 11, [1.6]-[1.7]. The five permanent members of the UN Security Council are China, France, Russia, the United Kingdom and the United States. 269 Commission of Experts Report, [12]; Sarmento, 49. The Commission of Experts comprised three legal experts from the Asia-Pacific region: Justice Prafullachandra Bhagwati (India); Professor Yozo Yokota (Japan) and Dr Shaista Shameem (Fiji) - Commission of Experts Report, [13]. 270 Ibid., [14]. 271 Ibid., [357]. 272 Ibid., [359]-[360].
unlikely to improve without significant international assistance. 273 In response, the Commission recommended:
1. The UN Security Council provide sufficient financial and logistical assistance to ensure the continuity of the work of SCU, the Special Panels and DLU until such time as the investigations, indictments and prosecutions of those who are alleged to have committed serious crimes are completed. 274
2. In the event that the first recommendation is not followed, the UN should establish an alternative justice mechanism within the domestic judicial framework of Timor-Leste to ensure the continuation of investigations and trials. Such a mechanism would still require continued assistance from the international community. 275
Regarding the Jakarta ad hoc Court, the Commission was particularly scathing. Prosecutions were labelled manifestly deficient and the entire process was said to have been seriously flawed and not in conformity with national and international legal standards. 276 In response, the Commissions recommendations to Indonesia were:
1. That a team of preferably Asian legal experts be assembled to provide the Office of the Attorney-General with independent specialist legal advice on international criminal law, international humanitarian law and international human rights standards, including procedural and evidentiary standards. 277
2. That the Attorney-Generals office review all prosecutions in the ad hoc Court, and where appropriate, conduct new trials of the indictees, including de novo trials. 278 Any retrials must accord with acceptable national and international standards. 279
3. Under the guidance of SCU and UN officials, evidence and files relating to the Wiranto et al indictment 280 be submitted to the Attorney-General for prosecution, given that this evidence appears sufficient to support successful prosecutions. 281
4. The Indonesian government submit a report to the Secretary-General on any new investigations and trials or retrials carried out as a result of the Commissions report. 282
5. The Indonesian government implement the Commissions recommendations within six months. 283
273 Ibid., [366]. 274 Ibid., [505]. 275 Ibid., [506]. 276 Ibid., [371]; [515]. 277 Ibid., [514]. 278 A de novo trial is a new trial from the beginning, where the court is not confined to evidence that was presented in the original hearing (Butterworths Concise Australian Legal Dictionary, 3 rd ed., Sydney: LexisNexis Butterworths, 2004, 113). 279 Commission of Experts Report, [515]-[516]. 280 See Chapter Two, Flaws in the Proceedings: Dili. 281 Commission of Experts Report, [519], [521]. 282 Ibid., [523]. 283 Ibid., [524].
Further, the Commission insisted that:
Where possible, UN member states should exercise universal jurisdiction in seeking prosecutions of those accused of the violence; 284 and if the above recommendations were not followed by the governments of Timor- Leste and Indonesia within the recommended timeframes, the Security Council should: a) establish an ad hoc International Criminal Tribunal for East Timor; 285 or alternatively, b) use the International Criminal Court to investigate and prosecute the accused. 286
Non Government Organisations (NGOs)
Many NGOs have been particularly scathing of the results of the justice processes. New York-based Human Rights Watch has declared that Indonesias trials for crimes in East Timor speak for themselves: the process was a sham. 287 Timor- Lestes Lao Hamutuk 288 has labelled the trials a highly flawed and insincere process, 289 and Amnesty International together with Timor-Lestes Judicial System Monitoring Programme have found that Indonesia has fallen well short of the standard [of justice] set by the UN Secretary-General 290 and that to hold new trials in Indonesia would require not only substantial reform of the Human Rights Courts, but of the whole justice system. 291 Moreover, those and other organisations have argued that without significant international assistance, currently there does not exist the requisite institutional capacity in Timor-Leste to conduct further serious crimes cases. 292
Accordingly, the primary wish of most East Timorese, Indonesian 293 and international NGOs is the establishment of an international criminal tribunal for
284 Ibid., [527]. 285 Ibid., [525]. 286 Ibid., [526]. 287 Human Rights Watch, East Timor: UN Security Council Must Ensure Justice, Available: http://hrw.org/English/docs/2005/06/28/eastti11231_txt.htm (20 March 2006). 288 Lao Hamutuk is the East Timor Institute for Reconstruction, Monitoring and Analysis, a Dili- based NGO. 289 Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither. 290 Amnesty International and Judicial System Monitoring Programme, [11.1]. 291 Ibid., [11.5], emphasis added. 292 Mary Corkery et al., NGOs Write Security Council and Secretary-General on Commission of Experts & Timor Justice, Available: http://www.etan.org/news/2005/08ngos.htm (1 April 2006); Amnesty International, Timor-Leste: Security Council inaction on justice for Timor-Leste leaves fight against impunity in limbo, Available: http://web.amnesty.org/library/Index/ENGASA570042005 (25 March 2006); Amnesty International and Judicial System Monitoring Programme, [4], [11.1]. 293 Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Report of Proceedings, Paper produced as a result of the Symposium on Justice for International Crimes Committed in the Territory of East Timor, University of Melbourne, Melbourne, 16-17 January 2003, [4.3], note that in 2002, 100 Indonesian NGOs called for the establishment of an international criminal tribunal, as the preferred method of bringing the perpetrators bearing the greatest responsibility for serious crimes to trial.
East Timor, 294 as suggested in both the CAVR and Commission of Experts Reports. Such a move must be initiated, and funded, by international donor nations and the UN, 295 and the tribunal could be located in Dili itself, in Indonesia, or in a western nation.
It has been argued that further criminal prosecutions must be carried out, or else:
this will provide fertile grounds for mistrust between social groups, and towards state institutions, to flourish. Failure to punish perpetrators of past human rights abuses will fail to deter future violence and will perpetuate future abuse. This is true for the people of East Timor as well as members of the TNI and militia groups throughout Indonesia. 296
As a result, a number of NGOs have pointed to the violence that has gripped Timor-Leste in April and May 2006 as partially contributed to by a lack of rule of law and the presence of a culture of impunity for past violations. 297 It has been suggested that if the UN has been prepared to establish an Independent Special Inquiry Commission to review crimes committed during the current crisis, why should it not be able to establish an international justice mechanism to deal with the violence of 1999? 298
Catholic Church
The views of the Catholic Church on the issue of justice carry great weight, considering the Church is the single biggest institution in Timor-Leste, with 90 percent of the population being nominally Catholic. 299 Most prominent Church figures have espoused the view that a UN-backed international criminal tribunal is now required as a final resort to deal with the perpetrators of the crimes, in light of the arguably unjust results of prior judicial mechanisms. 300 Echoing the views of
294 Ibid., [3.4]; Human Rights Watch, East Timor: UN Security Council Must Ensure Justice; Corkery et al; Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither; Maria Afonso de Jesus et al., Timor-Leste National Alliance for an International Tribunal: Letter to UN Secretary-General, Available: http://etan.org/news/2006/01ngo.htm (20 March 2006). Some organisations have cautiously supported the idea of giving Indonesia another chance to try its own nationals, if a rigid compliance system is imposed. However, this does not detract from their primary desire for an international criminal tribunal (Nina Bang-Jensen et al., Intl NGOs write SG on Commission of Experts report, Available: http://etan.org/news/2005/07ngo2.htm (20 March 2006); Amnesty International, Timor-Leste: Security Council inaction on justice for Timor-Leste leaves fight against impunity in limbo). 295 Bella Galhos, Maria Afonso de Jesus, and Charles Scheiner, Lao Hamutuk letter to SRSG on justice, Available: http://www.laohamutuk.org/Justice/05LHtoSRSG.html (20 March 2006); Afonso de Jesus et al. 296 Marshall. 297 Amnesty International, Timor-Leste: All parties must act resolutely to ensure justice for both current and past violations of human rights; see also East Timor Action Network, ETAN Statement on Recent Events in Timor-Leste. 298 Marshall. 299 Murdoch, 14. 300 Alberto Ricardo da Silva and Basilio do Nascimento, The Catholic Church of East Timor: Position on Justice for Crimes Against Humanity, in Prafullachandra Bhagwati, Yozo Yokota, and Shaista Shameem, Report to the Secretary-General of the Commission of Experts to Review the
many NGOs described above, Father Martinho Gusmao, director of the Churchs Justice and Peace Commission, declares [t]his is not just a problem between East Timor and Indonesia. They were crimes against humanity and this is a big international issue. 301 Moreover, as the Bishops of Dili and Baucau have stated in support of an international resolution to the issue of justice:
The Catholic community will not condone crimes against humanity. The victims who suffered these crimes, their families and the people in whose names such crimes are committed deserve nothing less. 302
President Xanana Gusmao and the Executive Government of Timor-Leste
Xanana Gusmao was elected the first President of Timor-Leste in 2002. 303 Despite his background as a guerrilla fighter with Falintil 304 and his status as a resistance hero, 305 Gusmao has been quick to campaign for reconciliation with Indonesia over the atrocities committed during the occupation. On numerous occasions, Gusmao has espoused his support for a pragmatic solution, whereby Timor-Lestes relations with Indonesia take precedence over the desire for perpetrators to held criminally accountable for human rights violations. 306 As President Gusmao advocates:
We must respect the courage of the Indonesians in accepting our independence and not disrupt their progress towards democratisation by demanding formal [criminal] justice. 307
At stake is the maintenance of Timor-Lestes most important international alliance in economic and security terms, 308 and the repatriation of a number of militia members still living in West Timor. 309 Gusmao therefore favours accepting the results of the judicial processes that have taken place in both Indonesia and Timor-
Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, UN Doc S/2005/458 (26 May 2005), 146; Smythe, 210; Murdoch, 14. 301 Murdoch, 14. 302 da Silva and do Nascimento, 146. 303 Profile: Xanana Gusmao. 304 See Chapter One, note 45. 305 Harris-Rimmer; Profile: Xanana Gusmao. 306 Powell, Timors Full Horror Revealed, 25. 307 Murdoch, 14. 308 Gusmao, Volunteerism Achieving Reconciliation and Peace, speech to the Seventeenth World IAVE Volunteer Conference, Seoul, Korea, 12 November 2002, in Timor Lives! Speeches of Freedom and Independence, Alexandria, NSW: Longueville Media, 2005, 81. It has also been alleged that the freedom and political futures of senior Fretilin leaders may be at stake if a judicial mechanism (such as an international criminal tribunal) with a jurisdiction stretching back to the Fretilin-UDT conflict in 1974-75 is established, thereby constituting another reason for Xananas pragmatic stance on the issue of justice. As Dunn notes, accusations of crimes against humanity committed by Falintil forces is a very sensitive political issue in Timor-Leste, especially considering Xanana himself was the commander of a battalion with a brutal reputation (Dunn, interview by author). Xanana has previously stated I will not accept the possibility of a Timorese becoming a possible defendant in [an] international tribunal, (Gusmao, Considering a Policy of National Reconciliation, 120). 309 Gusmao, Considering a Policy of National Reconciliation, 114.
Leste, 310 and also mitigating them by establishing a regime of amnesties and pardons to free some of those East Timorese militia members currently imprisoned after being convicted in the Special Panels, and to indemnify other serious crimes suspects who have not yet been prosecuted. 311 Additionally, East Timorese victims and their families must be content with efforts by President Gusmaos government to develop public infrastructure, rather than demand formal reparations from Indonesia or western nations. 312 Gusmao has stood by this overall position in the face of significant criticism from international and domestic NGOs, who argue that aspects of his reconciliation policy breach international human rights standards. 313 He responds to these criticisms by declaring:
We have our own experience of forgetting the past. We have our own experience of forgiving each other mutually. We do not need the standards of other countries. 314
A telling example of Gusmaos determination to maintain his position on justice is evident in his handling of the CAVRs Final Report. The completed Report was delivered to the President on 31 October 2005, and was subsequently presented by the President to UN Secretary-General Kofi Annan on 20 January 2006. 315
However, Gusmao has not yet publicly released and disseminated the report in Timor-Leste after he had promised to do so within three months of obtaining it. 316
He has also publicly rejected the Commissions recommendations (in particular those espousing further trials, and reparations payable to victims), accusing the Commissioners of grandiose idealism. 317 For Gusmao, Chega! is not a source of
310 Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary-General, UN Doc S/2005/459, Annex I (15 July 2005), 3; Report of the Secretary-General on justice and reconciliation for Timor-Leste, [19]. 311 Gusmao, Volunteerism, 80. 312 Gusmao, Considering a Policy of National Reconciliation, 115-117; Marshall; Lam. 313 Specifically, human rights advocates point to the prohibition that international human rights and humanitarian law places on the provision of blanket amnesties for genocide, war crimes and crimes against humanity (Simunovic, 701-703; see Chapter Five, Blanket/Conditional Amnesties and Pardons for Serious Crimes: the International Law Position for more detail on amnesties and pardons for international crimes at international law). Additionally, they cite The Factory at Chorzow case as establishing an important principle of international law that states are obliged to provide reparations for any harm or damage caused by a wrongful act or omission on the part of that state (at 29, emphasis added). 314 Gusmao, Considering a Policy of National Reconciliation, 108. 315 Harris-Rimmer and Tomaras, 8. 316 Xanana Gusmao, Address by H.E. The President of the Republic Kay Rala Xanana Gusmo on the Occasion of the Presentation of the Final Report of the Commission for Reception, Truth and Reconciliation, speech delivered in Dili, Timor-Leste, 31 October 2005. A popular version of the report, in Tetum, was to be produced and disseminated through a public education campaign by the post-CAVR Technical Secretariat (Damian Grenfell, When Remembering Isnt Enough, Arena Magazine, December 2005 January 2006, 32; Report of the Secretary-General on justice and reconciliation for Timor-Leste, [17]). 317 John Aglionby, Row over East Timor massacre report: President accuses authors of grandiose idealism; Decision not to publish alarms rights activists, The Guardian, 29 November 2005, 17; note that opposition leaders in Timor-Leste have criticised President Gusmaos handling of Chega!, in different ways. Joo Goncalves, Vice-President of the Social Democratic Party (SDP), has criticised reconciliation with Indonesia unless [reconciliation] is combined with justice for the victims My party strongly believes that those people who have committed crimes of genocide
evidence for further prosecutions, but rather constitutes a document valuable for its truth-seeking function: a tribute to the resistance and the East Timorese peoples suffering. 318
Initially established in March 2005 in what was possibly a veiled attempt to curtail the need for the Commission of Experts report, 319 the bilateral Commission of Truth and Friendship (CTF) with Indonesia is the East Timorese governments preferred institutional method of addressing the justice issue. 320 The Commissions mandate is to investigate the human rights violations that took place in 1999 in order to create a shared historical record of the events. 321 The Commissioners can then recommend amnesties for the deponents of serious crimes, together with measures designed to reform the institutions that made the violence possible. 322
This power to grant amnesties to perpetrators has suspended initial plans for a national law on amnesties, initially considered by the National Parliament of Timor- Leste in 2004. 323 Gusmao and Indonesian President Susilo Bambang Yudhoyono have dismissed strident criticism of the CTFs amnesty provisions from the CAVR, 324 Commission of Experts, 325 UN Secretary-General, 326 East Timorese Catholic Church 327 and NGOs. 328
have got to be brought to justice (Murdoch, 14). Special Advisor to the President and President of the SDP Mario Carrascalo has stopped short of criticising Gusmaos rejection of the CAVRs recommendations but he still opposes quarantining the report from the public, noting that the report presents the voices of victims and their demand for justice and the government should respect this by releasing it (Kingston, 8). 318 McWilliam. 319 Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither; Harris-Rimmer and Tomaras, 11. 320 The CTF is the first example of a bilateral truth commission. The panel is comprised of five commissioners each from Timor-Leste and Indonesia, and will be given access to documents and the ability to interview persons in both nations (Thankur, 11). The Commissions mandate runs for two years from August 2005, after it was granted a one-year extension by the governments of both nations (Commission of Truth and Friendship, Terms of Reference for The Commission of Truth and Friendship Established by The Republic of Indonesia and The Democratic Republic of Timor- Leste, Available: http://www.ctf-ri-tl.org/terms_of_reference/ (17 July 2006) (CTF Terms of Reference), [15]; Report of the Secretary-General on justice and reconciliation for Timor-Leste, [28]). 321 CTF Terms of Reference, [14.a]-[14.b]. 322 Ibid., [14.c]; Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary-General, 5. 323 Human Rights Watch, East Timor: Reject Pardon for Most Serious Crimes, Available: http://hrw.org/english/docs/2004/05/08/eastti8563_txt.htm (20 March 2006); Harris-Rimmer. 324 See Chega!, Part 11, [7.3]. 325 See Commission of Experts Report, [338], [376]. 326 See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [30]. 327 See da Silva and do Nascimento, 146-147. 328 See Human Rights Watch, East Timor: UN Security Council Must Ensure Justice; Galhos, Afonso, and Scheiner; Corkery et al; East Timor Action Network, ETAN Posts Entire Timor Truth Commission Report on Website, Available: http://etan.org/news/2006/02indo.htm (20 March 2006); Rizal Maslan; in particular, Timor-Lestes Lao Hamutuk has claimed that the CTF is improper on the grounds that it undermines the judicial proceedings already underway and contradicts United Nations Security Council Resolution 1272, which requires that the perpetrators be brought to justice and that [the CTF] is unconstitutional since it bypassed Parliamentary authorisation and will grant amnesty without following proper legal processes (Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither).
One final point that must be noted however is that not every executive government statement has condemned formal criminal justice in all its manifestations. In some speeches by President Gusmao, Prime Minister Jos Ramos-Horta and other senior cabinet figures, a sense of dissatisfaction with western governments is evident. They claim that Timor-Leste currently has no other option but to proceed with amnesties through the CTF and other non-adversarial measures, because the international community has not given it any other option. 329 At the present time, the government of Timor-Leste believes it should not have to carry the burden of seeking further criminal justice measures, especially an international criminal tribunal. 330 As Gusmao importantly notes:
The Commission of Truth and Friendship is not a final phase of justice. Over time, as both [Timor-Leste and Indonesia] mature democratically, peoples need for justice will be met. There is, after all, no statute of limitations for such crimes. As nations become more politically mature, past grievances and past wrongs can be righted. 331
Indonesian Government
Predictably, the recommendations of the Commission of Experts and CAVR report have not been well received in Indonesia, 332 where the prevailing political mood is one of denialism regarding human rights abuses in Timor-Leste. 333 The Indonesian Government claims the trials conducted in the Jakarta ad hoc Court were a legitimate exercise in justice and to revisit the cases would be a violation of its judicial sovereignty. 334 Despite the wishes of some prominent Indonesians to see the military commanders of crimes against humanity prosecuted in order to aid the process of democratisation, 335 the government believes that the time is right for closure of this issue.
Accordingly, Indonesia would never cooperate with moves to establish an international criminal tribunal for Timor-Leste (especially if located within Indonesia itself) and has lobbied for western support in the past to prevent such steps being
329 Kingston, 8; Harris-Rimmer; Graydon. 330 Gusmao, Considering a Policy of National Reconciliation, 119; Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, [3.3]; Watch Indonesia. 331 Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary-General, 6; also note here that, according to its mandate, the CTFs work is not to prejudice the continued operation of any ongoing judicial process, presumably in reference to trials in the Dili District Court (CTF Terms of Reference, [13.e]). 332 Patria; Parera; RI dan Timtim Kecewa Laporan Komisi Ahli PBB; in particular, the cancellation of a meeting between Indonesian President Yudhoyono and President Gusmao after the presentation of the CAVR report to the UN Secretary-General evinces the straining in East Timorese-Indonesian relations that the two reports have caused (Jolliffe, Compromising Justice in East Timor, Far Eastern Economic Review, 7 April 2006, 54). 333 Edward Aspinall, interview by author, Canberra, 27 April 2006. 334 Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor; Harper, 162- 163. 335 Fox, interview by author.
taken. 336 The Indonesian Government instead sees the CTF as the ideal opportunity to take the issue of justice completely off the international agenda, 337
and moreover to protect senior Indonesian military officials from crimes against humanity trials. 338 While President Yudhoyono admittedly recognises that further trials of some TNI suspects would benefit Indonesias international image and may assist his 2009 Presidential election campaign platform of judicial reform, the militarys continued influence within Indonesian politics means that further trials are extremely unlikely. 339
United Nations Secretary-General; United Nations Missions to Timor-Leste
After a majority of UN Security Council members were uncomfortable in following the recommendations outlined in the UN Commission of Experts Report in May 2005, they requested that the UN Secretary-General compile a report on justice and reconciliation for Timor-Leste containing a practically feasible approach to be followed, in light of the Reports findings and the views of the governments of Timor-Leste and Indonesia. 340 On 26 July 2006, the Secretary-Generals report was finally released. It contained the following recommendations relevant to the crimes committed during 1999:
the Governments of Indonesia and Timor-Leste review the CTFs amnesty clause, 341 in order to ensure conformity with international standards and principles, with a view to achieving credible accountability for perpetrators; the two Governments should strengthen the capacity of their respective judicial systems with a view to conducting further prosecutions of the perpetrators; 342
as part of a UN programme of international assistance for Timor-Leste, a solidarity fund comprising voluntary contributions from UN Member States will finance: o a community restoration programme, comprising collective, individual and reconciliatory measures; 343 and,
336 James Cotton, interview by author, Canberra, 26 April 2006; Diane Farsetta, Finding Justice in East Timor, Available: http://www.etan.org/issues/h-rights.htm (3 March 2006). 337 Aspinall; Kent, interview by author. 338 Grenfell, 35. 339 Lindsey; Dunn alleges that, because of the fact that President Yudhoyono participated in the invasion of East Timor in 1975 as a Junior Officer, and was the Commander of the notorious East Timor 744 Battalion in the late 1970s, he wants to use the CTF to close the issue of justice for crimes against humanity, in case he himself is implicated as a result of further investigations into past military operations (Dunn, interview by author). For more data linking President Yudohoyono to crimes against humanity committed in Timor-Leste, see van Klinken and Bourchier, 157-158. 340 Letter Dated 2005/09/28 From the President of the Security Council Addressed to the Secretary- General. 341 See CTF Terms of Reference, [14.c]. 342 For Indonesia, this may include prosecuting the cases of those persons indicted by [the] SCU but residing in Indonesia and retrials of those persons previously tried before the Ad Hoc Court but acquitted on appeal (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [37]). 343 See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [39(d)(ii)], for more detail on the nature of the individual measures proposed.
o a justice programme, such that investigations into the crimes committed in 1999 can be completed by a new team of international investigators, with a view to future prosecution through the Office of the Prosecutor-General of Timor-Leste, or examination of the cases by the CTF. 344
The UN Security Council approved of the Secretary-Generals recommendations on 25 August 2006. Accordingly, they will be implemented as part of the United Nations Integrated Mission in Timor-Leste (UNMIT) from August 2006 onwards. 345
Conclusion
There exist a multitude of differing views on the future direction, if any, of the justice process in Timor-Leste. It is evident that no one solution will please all parties concerned. However, a means of normatively evaluating these proposals needs to be considered, so that recourse to one or other of the models outlined is not done on an arbitrary or subjective basis, but rather, is based upon an approach grounded in practicality and theory. This normative evaluation will be the subject of Chapters Four and Five.
344 Ibid., [36], [39]. Note that the Report specifically rules out a resumption of the full prosecutorial function previously exercised by the SCU (at [36]). Further (at [19]), in response to the recommendations outlined in Chega!, although the Secretary-General recognises that the report has received positive recognition from civil society organizations working in Timor-Lestewhich do not agree with certain aspects of the Governments response to the CAVR report and expect appropriate follow-up action to be taken on the reports recommendations, he defers judgement on the Governments response, as the Timor-Leste Parliament has not yet started debate on the report. 345 UN Security Council Resolution 1704 (25 August 2006) at [4]: UNMIT will have the following mandate (i) To assist in the implementation of the relevant recommendations in the Secretary- Generals report on Justice and Reconciliation. UNMIT is the successor mission to UNOTIL (United Nations Office in Timor-Leste).
Chapter Four
Practical Advantages and Disadvantages of the Institutional Options
Introduction
As the preceding chapter indicates, after the results of the trials in Dili and Jakarta a number of institutional options were identified by the major players to deal with the serious crimes committed in 1999. These options comprised judicial mechanisms to try and retry 346 the accused perpetrators of the crimes:
an international criminal tribunal, located in either Timor-Leste, Indonesia, or a third state; use of the International Criminal Court; renewing the mandates of the SCU, Special Panels, and DLU to conduct further hybrid trials in Timor-Leste, or alternatively, merely reactivating the investigative function of the SCU in order to conduct domestic trials in Timor-Leste; judicial reform and subsequent retrials in Indonesia; and third party states conducting domestic trials according to the principle of universal jurisdiction.
Plus the following non-judicial mechanisms:
granting amnesties to perpetrators through the CTF model, and/or pardons through Xanana Gusmaos Presidential mandate; stripping the CTF of its amnesty-granting power and relying solely on its truth-seeking function; 347
establishing a comprehensive reparations scheme to compensate victims and their families; apologies and confessions being granted by the perpetrators of serious crimes, and/or apologies being given by nations who supported the Indonesian occupation of Timor-Leste; and, third party states using diplomatic measures to encumber the lives of Indonesian-based suspects (eg freezing foreign assets and introducing travels bans).
Additionally, three further options raised by academic sources, but not mentioned in the previous Chapter, will be discussed below. These are:
346 Under international law, the principle of double-jeopardy (ne bis in idem: precluding an accused person being judged twice for the same criminal conduct, on the same evidence) only applies to retrials within the same domestic jurisdiction (Commission of Experts Report, [398], [401]; Amnesty International and Judicial System Monitoring Programme, [11.6]). Therefore, prosecution of suspects previously acquitted in Indonesia, through a reconstituted Special Panels system, would not be precluded by such a rule. For the application of the ne bis in idem principle to potential retrials within the Indonesian justice system, see note 410 (below), and for a comprehensive account of the potential double-jeopardy related issues in the present case, see Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Appendix 2. 347 Truth-seeking is the function of truth commissions (and criminal trials) whereby an investigation and public illumination of past wrongs is carried out in order to contribute to or correct the public historical record (Kiss, 6; Drumbl, 593). Relevantly, the CTFs mandate includes the power to reveal the factual truth of the nature, causes, and the extent of reported violations of human rights, that occurred in the period leading up to and immediately following the popular consultation in Timor-Leste in August 1999 (CTF Terms of Reference, [14a]).
establishing a new kind of Community Reconciliation Process 348 that could process remaining serious crimes cases not dealt with by prior judicial mechanisms 349 (a non-judicial mechanism); the use of a Rule 61-type procedure in Timor-Lestes District Courts 350 (a quasi-judicial mechanism); and trials of fugitive perpetrators conducted in absentia 351 in Timor-Lestes District Courts (a judicial mechanism).
In order to identify practicable solutions to the serious crimes committed, the procedural requirements, along with the practical advantages and disadvantages of each of the options raised will be considered below. Practical criteria used to evaluate the different options include:
cost; feasibility; potential effectiveness in the fulfilment of its function; potential to access perpetrators based in different jurisdictions and of different hierarchical ranks; and, possible adverse effects on Timor-Lestes future development as a nation.
Judicial versus Non-Judicial Mechanisms: General Outcomes
Before elaborating on the specific advantages and disadvantages of each institutional model, it will help to outline a series of general results to be expected if a judicial, or a non-judicial, approach is followed in the instant case. Given the positions of the Indonesian and East Timorese governments outlined in Chapter Three, it is clear that the most negative consequence of pursuing the perpetrators of serious crimes through judicial methods would be the adverse reaction to be expected from Indonesia. 352 At the current stage, ill-feeling from Indonesia would be disastrous to Timor-Lestes development as an independent nation, given that Timor-Lestes economic and security relationship with Indonesia remains its most important international concern. 353 Given the length of time that has elapsed since the events of 1999 and the establishment of the initial mechanisms in Dili and
348 Community Reconciliation Agreements were the result of the CAVRs Community Reconciliation Process, whereby the perpetrator made an agreement with their victims and representatives of the community they harmed during 1999. Based on the agreement, the perpetrator was required to make a formal apology, pay compensation and/or engage in community service to rebuild local infrastructure (see Chega!, Part 9: Community Reconciliation). 349 See Hasegawa; Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor. 350 Sarmento, 50; Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Appendix 3. 351 Rapoza. 352 Gusmao, Volunteerism Achieving Reconciliation and Peace, 81. 353 Marshall; as Cotton, and Nevins (at 212-213) note, Timor-Leste is almost totally dependent on Indonesia for petrol and many other imports. Moreover, Indonesia would be in a position to restrict the movement of people and goods to and from the western enclave of Oecusse, and could possibly jeopardize further oil exploration in the Timor Sea by filing a dispute in the International Law of the Sea Tribunal.
Jakarta to prosecute the deponents of the violence, it is likely that the establishment of any of the judicial mechanisms described above in order to try Indonesian citizens would be interpreted by the Indonesian government as an undesirable change of course, placing Timor-Lestes future development at risk. 354
Further, it is extremely unlikely that the Indonesian government would be prepared to hand over its nationals if they were the subject of judicial processes outside their country, in the absence of overwhelming international pressure. 355 Even with international tribunals, the prosecution of high-level military officials requires significant cooperation and a measure of political will from nation states. 356
However, as discussed below, international tribunals are the best forums through which diplomatic pressure may be applied in order to achieve such goals.
It is at this point that non-judicial mechanisms can go some way to resolving the serious crimes issue, because Indonesian approval or support would not be required for most of the non-adversarial processes listed. Moreover, Timor-Lestes economic and security conditions would not be potentially compromised as they might be if judicial processes were instituted. Whilst it is true that some of the non- judicial options to be canvassed are as much punitive as they are restorative or reconciliatory measures (eg demanding reparations from the Indonesian government, forging a Community Reconciliation Agreement between perpetrator and victim, 357 or taking diplomatic measures against fugitive perpetrators), these options would not raise the ire of the Indonesian political and military establishment to the same extent that judicial solutions to the question of serious crimes would.
On the other hand however, the use of judicial mechanisms to engage in further prosecutions may be the only effective means to overcome the impunity enjoyed by many of the planners, commanders and participants in the 1999 violence. Although this point will be discussed in further detail from a theoretical perspective in Chapter Five, the practical advantages of securing convictions of the remaining perpetrators of the 1999 crimes include:
vindicating the suffering of East Timorese victims and their families, 358 and fulfilling the social consensus amongst East Timorese for punitive justice of some form to be carried out; 359
even-handed justice being meted out both to the primarily East Timorese trigger-pullers but also the primarily Indonesian commanders and planners of the violence; 360
an avoidance of community-based vengeance, particularly if further suspects return from West Timor; 361
354 Dunn, interview by author. 355 Juwana, 37. 356 Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, [4.3]. 357 See note 348 (above). 358 Cohen, ii; Harper, 150; see Chapter Three, Victims of the Violence and their Family Members. 359 Roper and Barria, 533; see also Commission of Experts Report, [381], for a statistical analysis of the opinions of the East Timorese public. 360 Kent, 62; Powell, UN Verdict on East Timor, 1. 361 Hasegawa.
setting an example to the individuals alleged to have taken part in the civil unrest witnessed in Timor-Leste during 2006, because as Dunn has pointed out, the failure to adequately deal with the crimes committed during 1999 cannot be ruled out as an element in the present crisis [of April and May 2006]; 362
to aid the democratisation process in Indonesia and to help end the TNIs history of impunity for human rights violations; 363 and, to preserve the integrity of the UN and its subsidiary agencies, given the issue of UN Security Council Resolution 1272 and UN Human Rights Commission Resolution 1999/S-4/1, which both call on the perpetrators of the 1999 violence to be brought to justice. 364
If non-judicial mechanisms were adopted, depending on the particular mechanism, it is likely that most of the above goals would remain unfulfilled. Overall, the question of judicial versus non-judicial processes is a vexed one, likely to be decided by practical considerations as much as matters of high principle.
Judicial and Quasi-Judicial Mechanisms Practical Institutional Considerations
International Criminal Tribunal
To establish an international criminal tribunal for Timor-Leste, the same procedures that were used to create the International Criminal Tribunals for Yugoslavia and Rwanda would have to be followed. A resolution by the UN Security Council, pursuant to Chapter VII of the UN Charter, would have to call for the establishment of a tribunal. 365 This would require significant leadership and support from one of the Permanent Members of the Council, and also the likely support of the UN Secretary-General. The government of Timor-Leste would only be able to play a tacit role in support of such a resolution (if at all), in view of the delicate compromise that President Gusmao faces in dealing with his Indonesian counterpart. 366
At the present time however, it would require a monumental change of course from the Security Council to pass a resolution authorising the establishment of an international criminal tribunal for Timor-Leste. Although there has been widespread agreement within the current Council to support the UN Secretary- Generals recommendation that the investigative mandate of the SCU be resumed
362 Dunn, interview by author; see also Amnesty International, Timor-Leste: All parties must act resolutely to ensure justice for both current and past violations of human rights and East Timor Action Network, ETAN Statement on Recent Events in Timor-Leste. 363 Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 7; see Nevins, 177, for more historical and current detail on human rights abuses carried out by ABRI/TNI personnel. 364 Note also UN Security Council Resolution 1543, which reaffirms the need to fight against impunity for serious crimes. 365 See UN Security Council Resolution 827 (1993); Report of the UN Secretary-General under Security Council Resolution 808 (1993), [I]-[II]; UN Security Council Resolution 955 (1994). 366 Kent, interview by author.
in Timor-Leste, 367 the evidence suggests that the US, UK, France, Japan and Germany, together with most other western nations, would like the option of an internationally-sanctioned justice process for serious crimes in Timor-Leste taken off the international agenda, given Indonesias strategic importance as an ally in the war on terror. 368
Geopolitical issues aside, the primary practical concern that has been raised about the establishment of an international criminal tribunal is the expense that this would entail for potential donor nations. 369 As a tribunal would be established pursuant to the UN Charter, the financing of the mechanism would derive directly from the UN budget. Based upon previous models, an international criminal tribunal does not dispense justice cheaply. By 2005, the annual budget of the ICTY was over US$200 million, and moreover the ICTR has required US$60 million on average to secure each of its guilty verdicts. 370 Further, convictions in an international tribunal are unlikely to be achieved quickly. To first apprehend the desired suspects, and then to successfully prosecute them is a process likely to take over a decade. 371
Moreover, despite the time and expense involved in carrying out trials through an international tribunal, it is likely that prosecutors would only be able to focus on a select range of defendants responsible at a command level for the serious crimes of 1999 (i.e. senior Indonesian military, police and civil officers). 372 Lower-level perpetrators who were not tried in the Special Panels would escape through the net of any likely prosecution strategy. 373
If all the above obstacles could be overcome however, based on the success of the ICTY and ICTR in securing the convictions of suspects that have come before those bodies, it is likely that an international criminal tribunal for Timor-Leste (given the same quality of evidence being available and the employment of similarly qualified prosecutors) would be able to effectively try high-ranking Indonesian military officers, amongst other suspects. 374 The great advantage of this mechanism, along with the International Criminal Court, is that the international nature of these tribunals (with their UN backing) means that it would be less likely that the Indonesian government could maintain its refusal to hand over military suspects for trial, given the international condemnation such recalcitrance would
367 Security Council Report. 368 Nevins, 163; Jolliffe, Compromising Justice in East Timor; Harris-Rimmer. 369 Roper and Barria, 527. 370 Ellwood, 2. 371 Roper and Barria, 533; as at 2004, the ICTY had convicted 37 defendants over 10 years of operations, whilst the ICTR had only convicted 12 defendants over 9 years (Bowman, 388). 372 See Chapter One, Legal Responsibility for Crimes Against Humanity; Amnesty International and Judicial System Monitoring Programme, [11.5]. The ICTY, ICTR, Extraordinary Chambers in the Courts of Cambodia, and the Special Court for Sierra Leone have all adopted prosecution strategies that aim to bring to justice those high-ranking perpetrators who bear the greatest responsibility for the commission of international crimes (Commission of Experts Report, [61]). 373 Simpson. 374 Roper and Barria, 533; see Chapter One, Legal Responsibility for Crimes Against Humanity, and see generally van Klinken and Bourchier, for an overview of the type of evidence that could be presented before an international criminal tribunal.
generate. 375 These prospects would be further enhanced if the tribunal was based in the Southeast-Asian region, or even better, in The Hague (as is the ICTY), so that the court could be seen as an expression of the international legal community, rather than merely that of Timor-Leste. 376
International Criminal Court
The International Criminal Court (ICC), seated at the Hague, is the long-awaited permanent multilateral mechanism created to prosecute international crimes. It is empowered to prosecute breaches of the Rome Statute, covering crimes against humanity, war crimes and genocide. 377 It is important to note that the Court was founded on the basis of complementarity, meaning that the ICC can only claim jurisdiction in a particular case if the relevant domestic authorities are unwilling or unable genuinely to carry out the investigation or prosecution of the crime. 378 In ruling on local authorities unwillingness, it is relevant (amongst other matters) if the proceedings:
were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 379
In the present case, SCU investigators were unable to gain access to suspects residing in Indonesia, and moreover for the Jakarta ad hoc Court trials, the Attorney-Generals office chose only to investigate and prosecute four of the 670 documented cases of human rights violations outlined in the KPP-HAM investigation. 380 As noted in Chapter Two, those trials in the Jakarta ad hoc Court that did go ahead have been widely criticised for their failure to conform to international standards of prosecutorial independence and criminal procedure. 381 It is likely therefore that the ICC would be able to assume jurisdiction over most of the suspects implicated in the 1999 violence, based upon the inability of the Special Panels to effectively prosecute those most responsible, and the unwillingness of the Indonesian Attorney-General to bring the leading Indonesian suspects to justice through the Jakarta ad hoc Court.
375 Dunn, interview by author. Graydon further notes that international measures such as threatened trade sanctions or a failure to renew loans by the World Bank would be able to achieve this outcome if Indonesia was not forthcoming in handing over suspects. 376 Dunn, interview by author; however, Laura A. Dickinson, The Promise of Hybrid Courts, American Journal of International Law 97 (2003): 295, 302, notes that the establishment of an international criminal tribunal at a location distant from the site of the crimes tends to alienate the local population from its work. 377 Rome Statute, Article 5. The jurisdiction of the Court extends to cases where the relevant conduct took place on the territory of a State Party to the Treaty, or where the accused is a citizen of a State Party (Rome Statute, Article 12(2)). Timor-Leste acceded to the Rome Statute on the 6 th
of September 2002 and hence the violent attacks committed during 1999 would come under the Courts spatial jurisdiction. However, see below on the question of temporal jurisdiction. 378 Ibid., Article 17(1). 379 Ibid., Article 17(2)(c). 380 See Chapter Two, Flaws in the Proceedings: Dili and Flaws in the Proceedings: Jakarta for more detail. 381 See Chapter Two, Flaws in the Proceedings: Jakarta.
Further, in order to utilise the ICC to prosecute those accused of serious crimes in 1999, a significant obstacle in terms of temporal jurisdiction would have to be overcome, as the ICC is only empowered to try cases that occurred after the Rome Statute came into force, in 2002. 382 It would require the Security Council to pass a resolution allowing the Court to exercise a one-off retrospective jurisdiction over the 1999 crimes for them to be the subject of ICC trials. 383 If use of the ICC could be secured however, the same key advantage noted above with regard to the international criminal tribunal option would arise: the international nature of the justice procedure would place significant pressure on Indonesia to hand over indicted suspects. In relation to costs, use of the ICC is likely to be cheaper than establishing an ad hoc criminal tribunal for Timor-Leste, 384 considering the mechanism is already operating, hence no start-up costs would be incurred.
Therefore, if the question of jurisdiction can be overcome, the use of the ICC compares favourably to the establishment of an international tribunal to try a small number of similarly high-ranking perpetrators. 385 Whilst in the past, the use of a high-profile international mechanism such as an international tribunal or the ICC has been seen as a back-up option to deal with the perpetrators of serious crimes in Timor-Leste, 386 the failures of other judicial mechanisms to bring the planners and commanders of militia operations to justice means that these two options must now be seriously considered as primary measures, despite the financial and political pressures this would place on the Security Council and UN members.
Renewing the Investigative and/or Prosecutorial Mandates of the Serious Crimes Unit and Special Panels for Serious Crimes
To enable the East Timorese judicial system to once again function to prosecute the suspects of 1999 on a large scale, 387 the UN (through the UN Development
382 Rome Statute, Article 11(1); Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Appendix 2, 19. 383 Commission of Experts Report, [447]-[452]. Although the ICCPR, Article 15, provides that prosecutions under retrospective criminal laws are a contravention of human rights standards, an exception for an act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations exists (emphasis added). Arguably, the Rome Statute crimes of genocide, war crimes and crimes against humanity constitute general principles of law recognized by the community of nations due to their likely status as norms of jus cogens (see Chapter One, note 84). 384 Commission of Experts Report, [442]. 385 The Commission of Experts Report (at [442]-[445]) has also canvassed a composite model, whereby an International Criminal Tribunal for Timor-Leste would be created, operating out of the ICC by means of a special agreement between the ICC and the UN Security Council. Such a model would reduce start-up costs but would also retain the political significance of an ad hoc criminal tribunal. 386 For example, see Commission of Experts Report, [525]; Chega!, Part 11, [7.2]. 387 However, as noted in Chapter Two, serious crimes suspects who return to Timor-Leste still theoretically face the threat of arrest and of prosecution within the Dili District Court, and there are a number of former militia members currently in pre-trial detention. The first trial of a militia leader from 1999 (Manuel Maia) since the closure of the Special Panels in May 2005, took place in mid- 2006 (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [10]; Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 31).
Programme) together with international donors would have to contribute a significant measure of resources and personnel in order to re-activate the SCU and Special Panels. 388 Ideally, a reconstituted serious crimes process would be seen as subject to UN ownership, so that any indictments issued following renewed criminal investigations would be seen as the result of UN efforts, rather than the work of the General Prosecutor of Timor-Leste alone. Such a move would place greater political pressure on Indonesia to extradite those suspects named in SCU indictments, 389 and would ensure the independence of the justice process from East Timorese government interference.
The most feasible means of reactivating the Serious Crimes Process would be through the mandate of UNMIT, the successor mission to UNOTIL that was established in August 2006. 390 However, at the current stage, plans to deal with serious crimes through the UNMIT framework only extend so far as to re-establish the investigative function of the SCU. 391 Whilst re-commencing investigations into more than 830 as-yet unaccounted for murders, together with crimes other than murder (such as sexual offences and torture) would undoubtedly constitute a worthwhile development, 392 it is an unfortunate reality that the judicial system of Timor-Leste faces enormous challenges in bringing perpetrators to justice for crimes being committed now, let alone prosecuting crimes committed in 1999. 393
Without a comprehensive international assistance package enabling the SCU to resume its full prosecutorial capacity, any new investigations launched may have little effect in bringing suspects to trial and obtaining convictions. 394 It should also be noted that even if a full prosecutorial system were to be eventually re- established, in all likelihood, a continued lack of Indonesian (and possibly also East Timorese) 395 government cooperation with the process would mean only East
388 Commission of Experts Report, [460]. Assistance in terms of international personnel would have to encompass judges, investigators, prosecutors, defence lawyers, translators and administrative support (Hirst and Varney, 27-28; Amnesty International and Judicial System Monitoring Programme, [12]; Dickinson, 307; Judicial System Monitoring Programme, JSMP Submission to the Independent Special Commission of Inquiry for Timor Leste, [4.2]-[4.3]). 389 Jrvinen, 71; Timor-Leste has no current extradition agreement with Indonesia and such a treaty would need to be created in order to facilitate access to all perpetrators (Girginov, [2]). 390 See Chapter Three, note 345. 391 Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]. 392 Hirst and Varney, 29; Amnesty International and Judicial System Monitoring Programme, [4]. 393 Gusmao, Considering a Policy of National Reconciliation, 119; Judicial System Monitoring Programme, JSMP Submission to the Independent Special Commission of Inquiry for Timor Leste, [1.2]; Harris-Rimmer. For example, during the entire month of August 2006, there were no trial hearings scheduled for either criminal or civil cases in Timor-Lestes District Courts, due to the departure of international judges whose contracts had expired (Judicial System Monitoring Programme, Departure of International Judges and Prosecutors Causes Problems in Timor-Leste Judicial System). 394 Jolliffe, Human Rights Abuses and Impunity in East Timor. 395 In September 2006, Judicial System Monitoring Programme continued to report some signs indicating that the Office of the Prosecutor-General is susceptible to pressure from the executive [government] regarding the decision of whether to commence prosecutions against certain high profile suspects (Judicial System Monitoring Programme, JSMP Submission to the Independent Special Commission of Inquiry for Timor Leste, [4.1]). Also see Chapter Two Flaws in the Proceedings: Dili on the East Timorese governments handling of the Wiranto et al indictment in 2003.
Timorese-based suspects (rather than higher-level perpetrators based in Indonesia) could be detained and brought to trial.
Rule 61 Procedures
A Rule 61 Procedure is a means of passing judgement on a case where the accused is absent from proceedings. The name of the procedure derives from Rule 61 of the ICTY Rules of Procedure and Evidence, under which the Court can hold a hearing to re-examine an indictment in cases where the accused cannot be found or was not surrendered to the Court. After reviewing the evidence available (including new testimony from witnesses, if appropriate 396 ) the Court is able to determine whether there are reasonable grounds to find that the accused committed the crime/s. The Court can then issue a published certification that the reason for the failure to convict the accused is due to the non-cooperation of a State. 397
An adaptation of the Rule 61 Procedure carried out in Timor-Leste would enable a court to issue a judgement as to whether or not there are reasonable grounds to suspect accused that perpetrators based in Indonesia committed the serious crimes which are the subject of their indictments. The judgement could then declare that but for Indonesias lack of cooperation, it is likely that the accused would have been convicted. 398 For victims of the crimes and their families, this procedure would provide an opportunity to openly testify against the deponents of violence, an action which has the potential to help restore their dignity and self- respect. 399 Moreover, a finding of reasonable grounds would also give more impetus to international efforts to enforce Interpol arrest warrants and invoke universal jurisdiction against the accused. 400
However, a number of genuine weaknesses are evident with this model. First, for all the findings of reasonable grounds that may be made, this will probably not result in any real punishment of the perpetrators living in West Timor and elsewhere in Indonesia. As noted above, it is extremely unlikely that Indonesia would hand over its indictees to face trial in the absence of overwhelming international pressure: a domestic-law based mechanism, employed in a domestic court would be unlikely to change Indonesias position. Second, Timor-Lestes courts do not currently have the resources, nor the legal mandate, to make use of the Rule 61 option, 401 meaning that the use of the procedure would have to emanate from a renewed Serious Crimes Process, requiring significant support from donor nations. Even if the use of the Procedure were currently possible, prosecutors and judges might not wish to waste their time and resources
396 ICTY Rules of Procedure and Evidence, Rule 61: Procedure in Case of Failure to Execute a Warrant, (B). 397 Ibid., (C), (E). 398 For detailed explanation of a proposed Rule 61 Procedure as adapted for use by the General Prosecutor of Timor-Leste, see Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Appendix 3. 399 Harper, 162. 400 Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, [4.2.1]. 401 Ibid.
undertaking such hearings, when there exist incomplete investigations and cases that could lead to real convictions. 402
Trials in Timor-Leste Conducted in Absentia
A trial in absentia is a trial in which a verdict (including a possible conviction) is issued in relation to the accused, despite the indictee not being within the States custody. 403 Currently, there exist no provisions in East Timorese criminal law to conduct trials of fugitive perpetrators in absentia. 404 However, if the relevant procedural changes were made, the logical application of this type of procedure would be to trials in Timor-Leste of those perpetrators at large in Indonesia.
The advantages and disadvantages of this option mirror those of Rule 61 Procedures described above. Overall, as trials in absentia are unlikely to make any real difference to the current impunity enjoyed by many suspects, and they are even more likely to raise the ire of the Indonesian government, i t would be unwise to invest valuable time and money in the legal reforms and extra resources that would be required to support this option in Timor-Leste.
Judicial Reform and Subsequent Retrials in Indonesia
The CAVR, 405 UN Commission of Experts, 406 UN Secretary-General, 407 and even some NGOs 408 have all recommended that Indonesia be given a second chance to try its nationals, after the acquittal of all bar one of the Indonesian suspects by the Jakarta ad hoc Court and subsequent appeals. However, in Chapter Two, I argued that the results of the Jakarta trials and their appeals did not merely arise due to the particular political and legal circumstances surrounding those prosecutions, but rather reflected a number of the deficiencies of the Indonesian legal system as a whole. Accordingly, for the Indonesian Attorney-Generals office to review the ad hoc Court prosecutions and their appeals and to successfully carry out de novo trials 409 of the acquitted, 410 in addition to further trials of suspects not originally indicted, this would be first contingent upon more general reforms to the
402 Ibid. 403 Schwartz, 12. 404 Rapoza; Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Appendix 3, 21. 405 Chega!, Part 11, [7.1.5]. 406 Commission of Experts Report, [514]-[517]. 407 Report of the Secretary-General on justice and reconciliation for Timor-Leste, [37]. 408 For example, see Bang-Jensen et al; Amnesty International, Timor-Leste: Security Council inaction on justice for Timor-Leste leaves fight against impunity in limbo. 409 See Chapter Three, note 278 (above). 410 Although the principle of ne bis in idem (double jeopardy) is enshrined within the Indonesian Constitution (providing that the only exception to the rule arises where evidence is discovered that was not previously available during trial), it is arguable that international law provides an additional exception to the doctrine where the initial trial was fundamentally flawed (Commission of Experts Report, [395]). The UN Commission of Experts reached the conclusion that the Jakarta ad hoc Court trials were of such a character (at [394]).
Indonesian justice system. 411 Such reforms would be substantial in their scope and impact, and would probably have to include strengthening the independence of judges and prosecutors, putting in place effective measures for witness protection, (re)educating judges and prosecutors in international criminal law jurisprudence, and amending the Law on Human Rights Courts (No 26/2000) so that it complies with international standards of criminal procedure. 412
Even if all the reforms listed above were eventually to be carried out, there would be no guarantees that any further trials would be totally free of outside influence. Despite the official abolition of the dwifungsi doctrine, 413 the military remains a key player in Indonesian politics, and individual TNI members possess much political clout, in addition to substantial financial resources. 414 Although the previous deficiencies in the Indonesian judicial system are slowly being eradicated, 415
overall, the nature of the reforms that would still have to be made, together with the continued veneration of the Indonesian military in political circles, means it is unlikely that further trials in Indonesia would be successful in convicting TNI personnel at the present time. 416
Universal Jurisdiction 417
The prosecution of militia, military, police, or civil suspects by universal jurisdiction in the courts of third-party nations would offer all the benefits associated with judicial processes in general, 418 whilst also removing the burden of seeking justice from the fragile shoulders of the East Timorese government. However, the great difficulty with this institutional method is that the accused must first situate themselves within the jurisdiction of the prosecuting state in order for an arrest warrant to be enforced. 419 Although this circumstance may only arise infrequently, prosecutions could be encouraged wherever relevant national laws allow it, such that third party states adopt a principled stand towards the problem of justice for
411 Amnesty International and Judicial System Monitoring Programme, [11.1]; Commission of Experts Report, [390]. 412 Amnesty International and Judicial System Monitoring Programme, [12]; Dickinson, 305; Commission of Experts Report, [390]. 413 Dwifungsi was the doctrine espousing the dual civilian-security function of the Indonesian military, during the leadership of President Suharto (Rabasa and Haseman, 10). As official government policy, this dual-function has been gradually phased out since the end of the New Order regime in 1998 (Tan, 92). 414 Jolliffe, Compromising Justice in East Timor. 415 Lindsey; Amnesty International and Judicial System Monitoring Programme, [10.1]. 416 Lindsey; notably, two further sets of human rights trials that began after the conclusion of the Jakarta ad hoc Court trials (investigations into 1) extrajudicial executions in the Tanjung Priok area north of Jakarta in 1984, and 2) extrajudicial executions, torture and arbitrary detention in Abepura, Irian Jaya, during 2000) have exhibited some of the deficiencies witnessed in the Jakarta trials, namely, a failure to indict those most responsible, the intimidation of prosecution witnesses, and a lack of prosecutorial will to secure convictions of the accused (Amnesty International and Judicial System Monitoring Programme, [10.1]). 417 For further explanation of trials by universal jurisdiction, see Chapter Three, note 263. 418 See notes 358-364 (above). 419 See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment), at 75-79.
serious crimes in Timor-Leste, over Realpolitik considerations such as their economic and security relationship with the Indonesian government.
In addition to the use of universal jurisdiction in bringing the perpetrators to criminal justice, a number of nations have domestic laws that could facilitate civil suits against those perpetrators who remain at large. Under the United States Alien Tort Claims Act, successful lawsuits were filed in 1994 against General Sintong Panjaitan, for his role in the Dili massacre of 12 November 1991, and in 2000, against General Johnny Lumintang, for his role in the 1999 militia violence. 420 As with the universal jurisdiction criminal trials described above, the difficulty with initiating such actions is that the defendant would normally have to be within the relevant nations territory, so that he or she could be served with court documents. 421 Where the defendant/s remain outside the State hosting the criminal or civil action, a judgement against those implicated in the 1999 violence would at best enable diplomatic measures to be taken in order to encumber the suspect/s found liable. 422 However, where the judgement is able to be enforced, this institutional option becomes an ideal means to share responsibility for fighting the impunity currently enjoyed by high-ranking serious crimes perpetrators.
Amnesties authorised by the Commission of Truth and Friendship, together with Presidential Pardons
The combination of amnesties issued by the CTF Commissioners after the compilation of their Final Report, together with Presidential Pardons issued by Xanana Gusmao, could lead to the exoneration of some (or all) of the following deponents:
1. East Timorese militia members convicted by the Special Panels; 2. East Timorese militia members still at large in Indonesia or else whose criminal actions were not the subject of SCU investigation; and 3. Indonesian military, police and civil suspects living in Indonesia.
Proceeding with amnesties and pardons would have a number of advantages, apart from the CTFs obvious asset that it constitutes a mechanism already
420 The Alien Tort Claims Act (1789) allows US courts to adjudicate on human rights-related cases where neither of the parties is connected to the United States. Under the Act, Lumintang (at the time, the Indonesian Armys Vice Chief of Staff) was found liable for US$66 million, on the basis of command responsibility, whilst a judgment for US$14 million was issued against Panjaitan (East Timor Action Network, Indonesias Generals on Trial in US Courts, Available: http://www.etan.org/news/2000a/11suit.htm#Legal%20Background (8 August 2006)). The US Torture Victim Protection Act (1992) possesses a similar application, enabling foreigners to launch civil suits in domestic courts against individuals who engage in torture or extrajudicial killing, whilst acting in an official capacity for another nation. Local remedies must have been exhausted before a claim is made. 421 See for example Filartiga v Pena-Irala, United States Court of Appeals, Second Circuit, 30 June 1980, 630 F.2d 876, with application to the Alien Tort Claims Act. 422 See Diplomatic Measures by Third States (below).
established and promoted by the governments of both Timor-Leste and Indonesia. First, amnesties and/or pardons for East Timorese perpetrators would facilitate the return of those militia members remaining in West Timor and elsewhere in Indonesia, and would also free those convicted by the Special Panels from prison, thereby lifting the possible burden of further trials or the maintenance of prisoners from the state. 423 From an economic perspective, President Gusmao feels this could be an especially important move, seeing as many of East Timors able- bodied young men have either fled to West Timor, or else have been imprisoned as a result of the Serious Crimes Process. 424
Second, the institutional recommendations to be proposed by the CTF in conjunction with its amnesty-granting mandate 425 have the potential to assist with reforms to the TNI and Indonesian judicial system, in the broader context of democratisation in Indonesia. Criminal trials of course have the potential to highlight the individual responsibility of the accused, but neglect institutional responsibilities. 426 Third, offering amnesties for Indonesian military, police and civil officials is likely to be the most beneficial choice for East Timorese-Indonesian relations amongst all potential institutional options available. Fourth, with the current unlikelihood of senior Indonesian military figures facing trial over their role in the 1999 violence in any case (some of those figures named in the KPP-HAM Report and those indicted by the SCU have even been promoted 427 ), a circumstance of extreme selectivity has arisen with regard to punishment. The economic argument noted above seems more attractive considering it is only lower-ranking perpetrators who have been convicted by the Special Panels, and for this reason, the option of granting pardons to these lesser-profile perpetrators appears preferable to maintaining the status-quo. As President Gusmao has stated:
When [victims] learn that, in prison, the state has to feed the prisoners three times a day and take care of their health, that the prisoners have time allotted for sports and to study, that they have clean water, electricity, mattresses, blankets and clothes and that, for this reason, the State has to cut spending for schools, for medications, for roads, and so forth, the population immediately reacts by saying: Oh! No! This is unfair!Some people will [still] have to serve their sentences, but we should not let them rot in prison. 428
In response to proposed amnesties and/or pardons, apart from the general criticisms by human rights advocates that amnesties and pardons granted for Rome Statute crimes violate international law 429 (which will be considered further in the next Chapter), opponents of the CTF model have expressed a number of
423 Gusmao, Considering a Policy of National Reconciliation, 114; Harper, 183; Laakso, 52. 424 Harris-Rimmer. 425 See Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary- General, 5. 426 Ibid., 5-6; Simunovic, 703. 427 Powell, Timors Full Horror Revealed, 25; Dunn, interview by author. 428 Gusmao, Considering a Policy of National Reconciliation, 122-123. 429 See for example Commission of Experts Report, [338]; Hirst and Varney, 29.
reservations about this approach in particular. Critics argue that the CTF focuses on the rights of perpetrators, at the expense of the rights of victims. 430 There are of course no guarantees that the testimony given by perpetrators to the Commission will be truthful, and there are no provisions allowing for the cross-examination of witnesses. 431 Additionally, concern has been expressed that the CTF possesses access to the archives of the CAVR and Special Panels for Serious Crimes, 432
including potentially sensitive information regarding victims and witnesses which might threaten their future safety in Timor-Leste and/or Indonesia. 433 Finally, I noted in Chapter Three that many former victims and their families would not oppose the eventual granting of pardons to those East Timorese militia members convicted and imprisoned by the Special Panels, so long as the Indonesian planners and commanders of the violence could be apprehended and brought to trial. 434 Accordingly, criticism has been voiced that the amnesty regime proposed by the CTF, in light of the fact that the major beneficiaries of amnesties are likely to be Indonesian military officers, does not possess democratic legitimacy because its establishment has bypassed parliamentary and popular consultation. 435
Removing the CTFs Amnesty-Granting Power
Removal of the amnesty-granting power possessed by the CTF will shift the primary focus onto the Commissions truth-seeking mandate. 436 Although removing this amnesty-granting capability has been recommended by the UN Secretary-General as a measure designed to lead to further prosecutions, 437 any fresh evidence that comes to light as a result of CTF hearings may arguably prove inconsequential from a criminal trials perspective. Linking the Commissions hearings and final report with possible judicial processes in Indonesia and Timor- Leste would do little to alleviate the problems previously experienced with trial proceedings identified earlier. Specifically, prosecutors in Dili would still not have access to Indonesian-based suspects, 438 and additionally there has arguably been no political will within the Indonesian Attorney-Generals Office to see leading perpetrators effectively punished for their actions. 439
Moreover, without the incentive of amnesty, leading Indonesian perpetrators may choose not to testify before the Commission at all, due to fear of self-incrimination. Without reliable testimony from leading suspects, the Commissions final report would be primarily based upon an examination of documents already publicly
430 Hirst and Varney, 29. 431 Dunn, interview by author. 432 CTF Terms of Reference, [19(b)]. 433 Hirst and Varney, 29. 434 See Chapter Three, Victims of the Violence and their Family Members. 435 Commission of Experts Report, [348], [351]; Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither. However, on the other hand, it may be argued that the CTF was established by an executive government that was democratically elected in 2002: as Stahn (at 956) notes, it is generally agreed that truth commissions should be established by the legislature or executive of a democratically elected government (emphasis added). 436 See note 347 (above). 437 Report of the Secretary-General on justice and reconciliation for Timor-Leste, [39(b)]. 438 See generally Chapter Two, Flaws in the Proceedings: Dili. 439 See generally Chapter Two, Flaws in the Proceedings: Jakarta.
available: the KPP-HAM Report, indictments and court transcripts from ad hoc Court and the Special Panels, and Chega!: the CAVRs Final Report. 440 Arguably, the Commissions contribution to the historical record of the crimes committed during 1999 would then become negligible. 441 The CTF should be seen as a restorative justice mechanism rather than a means to further prosecutions: if further trials became the intention of the East Timorese and Indonesian governments, the Commission would serve very little use.
Reparations Programmes for Victims and their Families
As recognised in Chapter Three, many victims of the 1999 violence and their families feel that their ordeal has compromised their chance of entering life in independent Timor-Leste on an equal footing with their fellow citizens. The provision of monetary and other reparations would be an effective means of compensating and acknowledging victims and their families for their losses, 442 and in this sense might in fact supersede criminal trials in terms of providing a real solution for members of the general public. 443 As Harper notes:
With no operational welfare state or insurance culture [in Timor-Leste], a court judgement and a jail sentence simply do not respond to the primary issues faced by victims. 444
Although there appears little doubt that the provision of reparations would be a positive step in dealing with the legacy of the violence (not to mention, arguably a legal requirement 445 ), the important question to be answered in this case is who is to provide the funds? If the CAVRs recommendations were to be heeded and such reparations were to be payable by Indonesia, together with permanent members of the UN Security Council, 446 the reparations would necessarily possess a different function to the significant amounts of aid that have already been
440 CTF Terms of Reference, [14(a)(i)]; see also Report of the Secretary-General on justice and reconciliation for Timor-Leste, [24]. 441 However, the UN Secretary-General has argued that incomplete criminal investigations have meant that a full and accurate factual record of the serious crimes committed in 1999 has not yet been established (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]). 442 According to the CAVR, reparations may be defined as measures to repair damages suffered by victims of human rights abuses. Relevant forms of reparations that may be issued include compensation, restitution (re-establishment, as far as possible, or the situation that existed for the beneficiary prior to the violation), rehabilitation (including the provision of medical and psychological care and the fulfillment of significant personal and community needs) and symbolic forms of reparation (Chega!, Part 11, [12.2]). 443 Lopes. 444 Harper, 176. It has even been argued that if the CAVRs recommendations for reparations had immediately been met, the poverty and unemployment problems speculated as the roots of the crisis of May and June 2006 might have partially been alleviated (East Timor Action Network, ETAN Statement on Recent Events in Timor-Leste). 445 The Factory at Chorzow case, at 29; Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law; Commission of Experts Report, UN Commission on Human Rights resolution 2003/34, UN Doc E/CN.4/2000/62, Annex (23 April 2003), [495]. 446 Chega!, Part 11, [1.6]-[1.7], [10.16].
invested by western nations in Timor-Lestes reconstruction. As opposed to aid, reparations would go straight to the victims. 447 However, as President Gusmao acknowledges, demanding reparations for international wrongs from nations who have generously supported East Timors post-occupation reconstruction to the tune of more than US$2 billion since 1999 448 would be an act of extreme ingratitude, 449
not to mention the likely negative impact on Timor-Indonesia relations.
One means of providing reparations for victims of the violence, without unduly compromising Timor-Lestes position internationally would be to make use of the International Criminal Courts Trust Fund for Victims. The contents of the fund are sourced from voluntary contributions by states, international organisations, corporations and individuals, together with fines and forfeitures ordered by the Court, 450 and were intended to compensate victims of crimes within the jurisdiction of the Court, and [their] families. 451 One issue that would need to be resolved is whether or not a positive judgement by the ICC is required for victims to gain access to the fund, or whether claims may be made by any victims of crimes over which the Courts mandate extends (i.e. genocide, crimes against humanity and war crimes). 452 It has been suggested that although many of the indictments issued by the SCU have not resulted in trials and convictions, they are nonetheless of a sufficiently high quality to be used by named East Timorese victims in making a case to access resources of the Fund. 453 Although this form of compensation might not have the same symbolic value as reparations paid directly by Indonesia or a western nation, 454 it would nonetheless provide the same on-the-ground benefits for victims.
As with any transitional justice measure that purports to provide benefits to victims and their families in Timor-Leste, problems of selectivity may arise with the use of the ICC Fund, due to the fact that the SCU indictments only dealt with 1999 crimes, 455 and as noted by the CAVR, atrocities had been committed throughout the length of the Indonesian occupation. 456 The last thing that a compensation process would set out to achieve would be to create further divisions within East
447 Harris-Rimmer. 448 Neves. 449 Xanana Gusmao, Press conference by President of Timor-Leste, Available: http://www.unmiset.org (8 August 2006). 450 International Criminal Court Resolution ICC-ASP/1/Res.6 (9 September 2002), [2]. 451 Rome Statute, Article 79(1). 452 The Redress Trust, 36; if this preliminary jurisdictional issue cannot be overcome however, Judicial System Monitoring Programme (Submission to the United Nations Commission of Experts, 10) has suggested that a specially-created ad hoc fund could finance a comprehensive reparations program, citing the previous examples of models created for El Salvador, Guatemala, Haiti, Malawi, South Africa and Peru. An ad hoc model could be funded through international resources, taxes, private sources, the sale of assets, or the recovery of assets from perpetrators and would be appropriate for situations where there exists a large and ill-defined class of victims, and a weak national economy, such as in Timor-Leste. 453 Harris-Rimmer. 454 Graydon. 455 Hirst and Varney, 8. 456 See generally Chega!, Part 7: Human Rights Violations.
Timorese society, given the unrest witnessed thus far during 2006. 457 Although in the compilation of Chega! the CAVR identified and provided emergency reparations to 500 most eligible victims from the entire period of the Indonesian occupation, 458 selectivity nonetheless remains a significant problem associated with proposed reparations measures for Timor-Lestes victims. As President Gusmao has noted:
We look at each other and feel that we deserve more because we did more [for the resistance]. We insult our people, we insult our history because our history did not begin on 20 May 2002. 459
Accordingly, it is important that planning for any reparations measures takes into account ways in which the funds, be they from governments, the ICC Trust Fund for Victims, or an ad hoc Fund, may be used to enhance an entire communitys standard of living, rather than focussing exclusively on the individual needs of those worst affected by the 1999 violence (although these people still obviously constitute the most important group of beneficiaries). 460
Apologies and Confessions
As noted in Chapter Three, both victim groups and the CAVR have called for apologies from individual perpetrators and the governments of western states who supported the Indonesian occupation of Timor-Leste. So far as such confessions and genuine apologies assist victims and their families in overcoming their grief caused by the violence of 1999 and also help to foster relationships based upon reconciliation and transparency both at a community and inter-governmental level, these are extremely worthwhile measures, especially considering they require the expenditure of almost no financial or human resources and can be carried out across national borders.
Renewal of the Community Reconciliation Process (CRP) to Deal with Serious Crimes
457 Graydon. 458 Commission of Experts Report, [495]; Harris-Rimmer. Kent, interview by author, noted that the CAVRs 500 most eligible victims were chosen from amongst those who came forward to give evidence to Commission hearings, rather than through the conduct of any thorough analysis. Solely relying on the CAVRs identification of the most eligible victims is likely to contribute to divisions within society over the recipients of reparations. 459 Gusmao, Considering a Policy of National Reconciliation, 116. 460 Commission of Experts Report, [498]. The Commission of Experts Report (at [499]-[501]) lists the strengthening of social services as one of two key targets of community-focussed reparations: schools, universities, hospitals, hospices and dispensaries could be constructed with the funds. Second, reparations should fund the recovery, identification and burial of unidentified human remains. The Report of the Secretary-General on justice and reconciliation for Timor-Leste (at [39(d)(ii)(a)]) lists collective restorative measures as possibly including such remedies as the provision of qualified teachers, school equipment, human rights educational material and awareness programmes, health, social and psychological services, and of support to local human rights organizations and victims rights advocacy services.
This option has the prime advantage of being a method whereby a non-judicial institutional solution may be applied to those serious crimes cases that have not been the subject of prosecution in the Special Panels for Serious Crimes, thereby potentially relieving the East Timorese judicial system of further burdens. Given the relative success of the old CRP in facilitating reconciliation between the perpetrators of less-serious crimes and their victims, 461 this would appear an option worthy of further consideration. The process could be set up so that perpetrators, in order to be indemnified from prosecution, must offer a formal apology, pay some measure of compensation, and engage in community service to assist the family and/or the community they have harmed, all as part of the Community Reconciliation Agreement reached with victims and community representatives. 462
This solution would provide some restitutionary remedies for victims, bring some measure of sanction to perpetrators, and might also incorporate traditional Timorese modes of conflict resolution, 463 adding to the legitimacy of the process in the eyes of the public.
However, there are two major potential problems with this model. First, a prime consideration is whether or not such a process would work as effectively with the perpetrators of serious crimes such as murder and rape as it did in most cases with the deponents of lesser crimes such as arson and cattle theft. Although the precise details of any plan for a renewed CRP have never been finalised, 464 the authors of any such proposal would of course have to find a way to ensure that no revenge killings or other attempts at vigilante-style punishment were carried out on the perpetrators involved. Moreover, for the protection of rape and other sexual crime victims, the perpetrator should not be allowed to deal directly with their victims unless prior consent was given.
Second, the most glaring weakness of this option (along with other purely-domestic institutional models) is that a renewed CRP would only have access to those fugitive perpetrators still living in Timor-Leste. As noted in Chapter Two, the vast majority of those indicted and not yet prosecuted by the SCU are thought to be residing in Indonesia. 465 To combat this problem, it is likely that moves towards a renewed CRP would have to be accompanied by a programme of amnesties to facilitate the repatriation of former militia members. Of course, many of the perpetrators would choose never to return to Timor-Leste, and moreover other indicted suspects (mainly those alleged to have played command or planning roles) were never based in Timor-Leste in the first place. Therefore, such a measure might only succeed in achieving accountability for a very limited number of accused persons, and therefore does not compare favourably with other institutional models that may affect wider change.
461 Zifcak, 54; Chega!, Part 9, 46-47. 462 Stahn, 963-964. 463 For example, kalu sala, a form of traditional East Timorese mediation which is used to establish the identity of the victim and then to ascertain an appropriate form of compensation, is drawn upon by the Community Reconciliation Process (Chega!, Part 11, [12.5]). 464 Hasegawa. 465 Hirst and Varney, 16.
Diplomatic Measures by Third States
Even if a majority of cases investigated by the SCU have not led to trials due to geopolitical reasons, the high-quality indictments (and Interpol Red Notices) produced in many cases may have significant value with regard to diplomatic measures able to be taken against the named suspects. 466 Those Indonesian- based suspects, whilst they may avoid prosecution domestically, still face the threat of trial in third states on the basis of universal jurisdiction, or transferral to face trial in Timor-Leste. 467 For those nations willing to play a small part in combating impunity, a number of diplomatic measures may be taken, backed by these threats. Foreign assets might be seized and travel and foreign investment prevented in an effort to significantly encumber the lives of suspects. 468
Additionally, extradition treaties might be signed with Timor-Leste and nations whose laws allow them to conduct trials by universal jurisdiction. As with universal jurisdiction trials in third-party states, the use of diplomatic measures frees the government of Timor-Leste from the burden of pursuing accused persons, and shares the responsibility to combat impunity amongst willing nations.
Conclusion
At the beginning of this chapter, a range of persuasive practical justifications were advanced for the use of judicial methods to try the perpetrators, but on the other hand, the potential adverse effect of these processes on East Timorese-Indonesian relations was noted. It is especially significant that an international-based judicial process would reflect the broad will of the international legal community, meaning an increased likelihood of Indonesian cooperation, and moreover such a process would not leave Timor-Leste in an isolated position against its powerful neighbour.
Accordingly, from a balanced perspective of practical advantages and disadvantages, the most preferable judicial options are:
use of the International Criminal Court to prosecute the Indonesi an-based commanders and planners of the militia violence, 469 or alternatively the use of universal jurisdiction by third-states to try those same high-ranking perpetrators, where and when this becomes possible, and;
within the newly-established UNMIT framework, reactivating the Serious Crimes Process in order to complete investigations and prosecutions of outstanding crimes against humanity, murder, sexual offences, and torture cases. Admittedly, it is extremely unlikely that a renewed Serious Crimes Process could gain access to Indonesian-based perpetrators, hence the need to focus investigative efforts on readily-prosecutable crimes.
466 Graydon. 467 See Universal Jurisdiction (above). 468 Harris-Rimmer. 469 This would require a Security Council resolution authorizing the ICC to exercise a one-off jurisdiction over the events of 1999: see note 383 (above).
On the other hand, the most effective means of responding to this situation from a non-adversarial perspective are as follows:
presidential pardons for (some of) those perpetrators imprisoned by the Special Panels and the consideration of an amnesty regime for those East Timorese perpetrators who have not yet returned to Timor-Leste, together with those Indonesian military, police and civil officials implicated in the violence. This option can be justified through an economic perspective (for the East Timorese perpetrators) and through an international relations, or geopolitical perspective (for the Indonesian perpetrators).
Although the Commission of Truth and Friendship is able to recommend amnesties for deponents (along with corrective institutional measures), the CTF may be the wrong forum through which to proceed, given its lack of a democratic mandate and of popular support in Timor-Leste, together with the Commissioners broad power to access sensitive personal records. The previously-proposed East Timorese national amnesty law that was effectively superseded by the CTF 470 would be a more appropriate option.
Reparations being issued to eligible victims and their communities. The ICC Trust Fund for Victims would be an ideal source of funding, if it can be successfully argued that all victims of Rome Statute crimes are eligible to access the Fund. Alternatively, an ad hoc Fund could be established for the same purposes.
Confessions and apologies issued by the perpetrators of serious crimes, and apologies being made by those western nations which supported the Indonesian occupation of Timor-Leste.
Based upon SCU indictments and Interpol Red Notices, UN member states encumbering the lives of suspects living outside Timor-Leste using diplomatic measures.
Although some of the measures described above are financially self-supporting and moreover do not directly affect Timor-Lestes international relations (for example, the use of universal jurisdiction or diplomatic measures by third states, and the granting of apologies by perpetrators), overall, the two sets of recommendations cannot completely coexist. In particular, the question of trials versus amnesties and pardons is a divisive one, and will need to be analysed from a theoretical perspective in the next chapter in order to be resolved in its application to the present case.
470 See Chapter Three, President Xanana Gusmao and the Executive Government of Timor-Leste.
Chapter Five
Legal and Theoretical Framework for Considering Amnesties and Pardons versus Criminal Trials
Introduction
In the conclusion to Chapter Four, I identified two sets of strategies that could be pursued in response to the question of justice in Timor-Leste: one group comprising judicial and quasi-judicial solutions, and the second group listing non- judicial approaches. Of these options, the most contentious choice involves that between amnesties and/or pardons on one hand, and criminal prosecutions of perpetrators at large in Indonesia and Timor-Leste on the other. In order to resolve this otherwise apparently irreconcilable conflict between restorative and retributive responses to mass atrocity, this chapter considers transitional justice theories on criminal trials versus amnesties and pardons, 471 together with an international law framework, with a view to finalising a set of strategies that would effectively address the question of justice in Timor-Leste if implemented. Although predicting the impact of a states choice of transitional justice measures on nation- building and the promotion of democracy in the future is far from an exact science (as democracy and strong state institutions can take hold regardless of past events and policies 472 ), the theoretical trends evident from these transitional justice models may be the best way of resolving what is otherwise an extremely vexed issue.
Amnesties, Pardons or Criminal Trials? Impacts on Nation-Building from a Theoretical Perspective
Criminal Trials
The main justification usually invoked for the use of criminal trials as mechanisms for transitional justice is that through such trials, retribution may be meted out to the perpetrators (that is, giving perpetrators what they deserve through punishment). 473 Moreover, in a post-conflict setting, retribution is said to placate the victims of state-sponsored atrocities. 474 It acknowledges their suffering, 475
provides them with a sense of security, 476 and legitimates them as just that, victims, rather than criminals or dissidents. 477 Retribution is also said to minimise the chance of vigilante-style revenge being carried out on accused persons, as court-imposed sanctions constitute a finite and legitimate solution to wrongdoing.
471 Transitional Justice is the field of jurisprudence that debates the various means to reckon with state-sponsored crime during the tenure of a prior regime (Shelton, 1045-1047); in particular, transitional justice theorists are traditionally split into two groups, those who favour retributive justice processes (such as criminal trials and lustration) versus supporters of restorative justice processes (such as truth commissions and amnesties): Kiss, 1. 472 Drumbl, 600; Sarkin and Daly, 699; Kiss, 3; the large number of states that have made the progression from violent beginnings to robust and peaceful democracies, without the aid of any transitional justice measures at all are testament to this fact (Mendeloff, 367). 473 Drumbl, 559. 474 OConnell, 300; Sarkin and Daly (at 728) note here that different cultures have different levels of emphasis on revenge and remorse, and consequently, retribution. This will influence whether or not criminal trials are seen as the most appropriate transitional justice measure by both victims and politicians. 475 Kiss, 11. 476 OConnell, 300. 477 Stanley, 585.
As such, fair and proportionate punishment can be meted out 478 that builds public confidence in the ability of the judicial system to deal with serious crimes. 479
Finally, retribution replaces an ongoing collective responsibility for crimes with individual responsibility, and therefore may assist in re-establishing the legitimacy of political leaders and institutions, if they are indeed absolved by the trials. 480
Apart from retribution, other justifications for criminal punishment that have been adopted in support of trials as transitional justice measures include:
deterrence; the rehabilitation of perpetrators; strengthening the rule of law; and, enhancing the new states international image. 481
Deterrence is a type of utilitarian pre-emption, a strong statement through accountability directed to possible future perpetrators that the crimes committed before the change in political regime will never be tolerated again. 482 A vital component of the deterrence justification is its application in erasing the impunity previously enjoyed by perpetrators of serious crimes during the previous regime (be they police, military, or civilians). Impunity is not merely the absence of criminal punishment, but a failure to punish that reflects an official endorsement of the perpetrators actions. 483 During the period directly after conflict, the abolition of impunity through criminal trials can be an especially important step in regaining the populations trust in the military, police and court system. 484
On the other hand, it has also been argued that the justificati ons of retribution and deterrence can be used as a cover for hatred and vengeance. 485 Rather than representing true closure of a violent past, a criminal trial may only result in scapegoating through individualised accountability, neglecting the systemic causes
478 Phelps, 52; Kiss, 9; however, as Drumbl notes here on proportionality for international crimes: at a certain point the massive nature of a crime makes retribution redundant insofar as human rights standards do not permit perpetrators of mass violence to face punishment that much exceeds that meted out for an ordinarily individuated case of violence in many places (at 580-581). 479 Judicial System Monitoring Programme, JSMP Submission to the Independent Special Commission of Inquiry for Timor Leste, [3]. 480 Teitel, 56. 481 Truth-seeking, or the investigation and public illumination of past wrongs in order to contribute to or correct the public historical record, is seen as a key justification both by the proponents of criminal trials (Drumbl, 593; Commission of Experts Report, [374]) and restorative measures (Kiss, 6). However, in the Timor-Leste example, a comprehensive reconstruction of the historical record has arguably already been carried out by the CAVR in its compilation of Chega!, together with Geoffrey Robinsons report for the United Nations Office of the High Commissioner for Human Rights (Robinson, East Timor 1999), the KPP-HAM investigation, and a number of other comprehensive reports that name individual suspects (see for example, van Klinken and Bourchier). Therefore, these claims will not be considered as persuasive either way in this Chapter. 482 Elwood, 2; Drumbl, 588; Rapoza. 483 Sarkin and Daly, 719. 484 Jrvinen, 38; for a detailed account of the dangers of impunity for serious crimes in a post- conflict society, see Russell Daye, Political Forgiveness: Lessons from South Africa. Maryknoll, N.Y.: Orbis Books, 2004, 107. 485 Gusmao, Considering a Policy of National Reconciliation, 112.
of the violence. 486 Moreover, in response to deterrence theory, Drumbl recognises that in circumstances where social order has been upended, perpetrators will not necessarily act in the rational manner that underpins the theory:
Although there is little evidence to suggest that perpetrators of ordinary domestic crimes will be deterred by the threat of punishment, there is even less evidence arguably, none that punishment (or the threat thereof) deters perpetrators of mass atrocity. 487
Rehabilitation is the reform of perpetrators behaviour to enable them to eventually be reintegrated into society. 488 Obviously, it is questionable whether imposing a lengthy prison sentence on a convicted person actually achieves this goal: perpetrators who eventually emerge from prison with a score to settle belie this assumption. 489 Accordingly, in the case of international tribunals prosecuting international crimes of mass atrocity, the rehabilitation of perpetrators has been largely disregarded as a factor influencing sentencing. 490
The rule of law is the contention that no-one is above the law, 491 and is seen as one of the essential pillars in the process of democratisation. 492 One of its consequences is the principle that all crimes are punished proportionally by the state through legal means, rather than through personal reprisal. 493 Accordingly, some scholars have argued that it is impossible to build a democratic society based upon the rule of law if calls for criminal accountability for the acts of a previous regime are ignored. 494 If an amnesty regime is created to absolve perpetrators of state-sponsored crime, critics argue that this failure to prosecute is a direct affront to the rule of law in a democratic system. 495 Criminal trials, on the other hand, ensure that no arbitrary temporal line is drawn at the precise moment of democratisation. Atrocities committed before the change in government are tried and punished in exactly the same manner as those perpetrated afterwards. 496
486 Drumbl, 591. 487 At 609; emphasis added. Note also Sarkin and Daly (at 715): For lower-level wrongdoers, trials may very well deter some people from committing crimes after all, it is often they who are scapegoated. Here, however, other factors, such as peer pressure, opportunities for personal advancement or remuneration, belief in the cause, or the perception of helplessness, may counteract the deterrent effect. 488 Of course, some retributive punishments constitute a permanent exile from the community (eg deportation, or the death penalty), however with most forms of punishment meted out in response to a criminal conviction, the perpetrator has the possibility of eventually rejoining society (Kiss, 11). 489 Gusmao, Considering a Policy of National Reconciliation, 121. 490 Drumbl, 589. 491 Dicey, 202-203. 492 Jrvinen, 38. 493 Mendeloff, 361; William I. Jennings, The Law and the Constitution, 5 th ed., London: University of London Press, 1959, 51. 494 Marshall; Teitel, 54; Llewellyn and House, 359; Kristin Bohl, Breaking the Rules of Transitional Justice, Wisconsin International Law Journal 24 (2006): 557, 583. 495 Laakso, 51; Amnesty International and Judicial System Monitoring Project, [11.2]-[11.3]; Slye, 197; Bohl, 583. 496 This mantra, although encapsulating the spirit of the rule of law doctrine, cannot always be applied in a literal fashion, given the selective prosecution strategies that must be adopted in bringing those who commit international crimes to justice. Given not every single crime can ever be
Finally, whether or not a state emerging from conflict is willing to prosecute key political and military powerbrokers from the former regime may affect its international image. Although this point is closely related to the legitimacy (or otherwise) of amnesties for serious international crimes at international law, discussed below, it is worth noting briefly that a new governments treatment of its nations violent past may define its image in the eyes of the international community. 497 A preference for criminal trials over restorative measures may assist the new government in establishing good relations with nations with strong human rights traditions and emphases.
Blanket Amnesties
The granting of blanket amnesties which exonerate all perpetrators of serious crimes during the course of a previous regime share most of the general purported benefits of restorative transitional justice processes. These include: 498
the ability of the new society to start afresh with a new moral code whereby every citizen may be treated equally, especially if the view is taken that the previous power structure lacked morality and hence did not constitute a valid legal regime. 499 This development can be interpreted as aiding, not impinging on, the development of the rule of law; 500
the reintegration of former perpetrators into the community, leaving open the possibility of reconciliation with their former victims. Relationships between perpetrators and victims previously defined by violence and harm can be thereby transformed into those based upon decency, reciprocity and respect. 501 Such results would be unlikely, if not impossible, with criminal trials; 502 and,
prosecuted, often only the highest-ranking, most responsible culprits are indicted (Osiel, 1809- 1810; Teitel, 40; Sarkin and Daly, 713; see also Chapter Four, note 372, giving examples of international and hybrid criminal tribunals that have adopted this type of prosecution strategy). 497 Sarkin and Daly, 698. 498 See also note 481 (above). 499 Geoff Gentilucci, Truth-Telling and Accountability in Democratizing Nations: The Cases Against Chiles Agusto Pinochet and South Koreas Chun Doo-Hwan and Roh Tae-Woo, Connecticut Public Interest Law Journal 5 (2005): 79, 87; Kiss, 6. Sarkin and Daly (at 727-728) note here that different cultures attach different levels of importance to collective memory and the events of the past: this will influence the necessity of starting afresh with a new moral code, or else attempting to account for events occurring during the tenure of a prior regime. 500 Teitel, 54-55; note that Timor-Lestes Judicial System Monitoring Programme has argued that the rule of law is better strengthened by the granting of amnesties on the basis of clear criteria and through a fair, transparent and consistent process, than by a failed attempt to carry out widespread criminal prosecutions (Judicial System Monitoring Programme, JSMP Submission to the Independent Special Commission of Inquiry for Timor Leste, [5.6]). 501 Kiss, 12; however, freeing accused perpetrators will obviously not accomplish this goal alone: reconciliatory measures attempting to redress the imbalance between perpetrator and victim will have to be carried out concurrently (see Gusmao, Considering a Policy of National Reconciliation, 112). 502 Sarkin and Daly, 690-691.
leaving opportunity, time and money for a focus on institutional, rather than individual accountability, 503 and moreover for the government and civil society groups to assist the general population in their recovery from the conflict through social justice measures. 504
On the other hand, unlike some other restorative approaches to transitional justice, a blanket amnesty regime is not victim-centred 505 but in reality the opposite, focussing on the interests of former perpetrators. 506 A programme of amnesties does not demand that former perpetrators take responsibility for their actions nor become accountable to their victims and former communities. Whereas for example, truth commissions and reparations programmes emphasise public shaming, restitution and reconciliation, 507 blanket amnesties achieve none of these goals on their own.
In fact, for the majority of occasions during which blanket amnesties have been considered an attractive transitional justice model for post-conflict governments, one of two extenuating circumstances have existed. First, the prior immoral regime was supported by a majority of the population, and hence a significant proportion of the population might constitute perpetrators. In that situation, to bring to trial the thousands of people who committed international crimes would be impractical, if not impossible. 508 The second circumstance has arisen where the perpetrators have somehow retained a measure of power in or over the new government. In this scenario, the new regime is held hostage to the previous one, to the extent that amnesties are granted in exchange for a relinquishing of power. 509
Conditional Amnesties and Pardons: A Compromise Position?
The advantages and disadvantages of criminal trials and blanket amnesty regimes have been described above. Is it possible however to create a theoretical model for a transitional justice scheme that combines the main advantages of both
503 Kiss, 14. 504 Gusmao, Considering a Policy of National Reconciliation, 116-117; Xanana Gusmao, On the Occasion of the Inauguration of the New CAVR Headquarters, the Former Balide Prison, and the Opening of the Public Hearings on Political Imprisonment, speech delivered in Dili, Timor-Leste, 17 February 2003, in Timor Lives! Speeches of Freedom and Independence, Alexandria, NSW: Longueville Media, 2005, 136. 505 Kiss, 12; restorative justice processes (such as truth commissions, public apologies and reparations) have been developed within a victim-centric framework to emphasise that the crimes committed by a previous regime were crimes committed against the wellbeing of those victims, rather than crimes that merely offend the conscience of the state in an abstract manner (Sarkin and Daly, 693). 506 Jrvinen, 38. 507 Kiss, 13. 508 Sarkin and Daly, 684-685; Simon Chesterman, Rough Justice: Establishing the Rule of Law in Post-Conflict Territories, Ohio State Journal on Dispute Resolution 20 (2005): 69, 77; Teitel, 40. For example, the Rwandan government has estimated that to try all those accused of participating in the 1994 genocide there by proper legal procedures would take two to four centuries (Sarkin and Daly, 685). 509 Sarkin and Daly, 721; Robinson, Serving the interests of justice, 495; relevant examples are amnesties granted to the former military leaders of Chile, Argentina and Uruguay (Chesterman, 76- 77).
options? In other words, what measures may act to effectively punish and deter, yet also rehabilitate perpetrators and facilitate their re-entry into society? Conditional amnesties and pardons may be the answer here.
Conditional amnesties can operate to provide some measure of retribution against perpetrators (and may therefore satisfy some victims and their families), yet also allow former perpetrators a new start in the community. Most importantly, conditional amnesties can still function to defeat impunity, depending on how they are framed and managed. 510 In order to convey a strong statement to the public (and the international community) that the amnesty does not legitimate the crimes committed, the amnesty should be:
1. Individual, so as to preclude blanket amnesties: each applicant must submit themselves for consideration; 511 and 2. as mentioned, conditional, such that the amnesty is only granted in exchange for something of value to society, rather than for the performance of a pre-existing duty (i.e. to obey the law). 512
These requirements are exemplified in recent international legal practice, as demonstrated in South Africa, Guatemala, Sierra Leone and of course through the CAVRs Community Reconciliation Process in Timor-Leste. 513 The individual amnesty requirement ensures that each perpetrator acknowledges and takes responsibility for their own actions, whilst the requirement of conditionality guarantees that the new government cannot be held hostage by the old regime until amnesty is awarded. 514 The nature of the retribution meted out on the perpetrators will depend on the precise conditional stipulations of the amnesty: revealing the true extent of the perpetrators involvement in crimes at hand (and hence publicly shaming the accused 515 ); the payment of monetary or other compensation to the victim and their family; assistance with community reconstruction projects; or the supplying of information that may implicate superiors, have all been either employed or suggested as conditions attaching to such amnesties. 516
The second option, of pardons for convicted perpetrators, 517 would arguably engender a similar effect. Pardoning a perpetrator through political means, after he or she has served a few years of a prison sentence would:
510 Sarkin and Daly, 721. 511 Ibid. 512 Ibid. 513 Stahn, 954. For the CAVRs Community Reconciliation Process, the Community Reconciliation Agreement signed by the perpetrator bestowed on them immunity from further criminal and civil court proceedings in relation to the conduct listed in the Agreement (Chega!, Part 9, 10). 514 Sarkin and Daly, 721. 515 Teitel, 47. 516 Laakso, 49; Sarkin and Daly, 721; Chega!, Part 9, 32. 517 The terms pardon and amnesty are sometimes used in an overlapping fashion: a broader use of the term pardon can refer to a complete foreclosure of prosecution, whilst amnesties are sometimes awarded to convicted persons already serving prison terms (Orentlicher, 2543, note 14). However, a pardon in the present context refers to the emancipation of a convicted criminal who has already served part of their sentence.
maintain some measure of punishment for the imprisoned individuals actions; 518 and, as such, result in deterrence of that form of that conduct, 519 and hence not compromise the abolition of impunity. 520
However, a pardon would also:
reduce the chance of the convicted person wanting to settle scores after their release; 521
reintegrate perpetrators back into the community, providing the opportunity for reconciliation and restitutionary measures with the families of their former victims; 522 and reduce the burden on the correctional services system. 523
Blanket/Conditional Amnesties and Pardons for Serious Crimes: the International Law Position
Whilst international law does not take a position on the granting of amnesties for purely domestic crimes, 524 it is strongly arguable that the provision of amnesties (both conditional and unconditional) for the perpetrators of genocide, war crimes, torture and crimes against humanity breaches international law. 525 This contention is based upon the obligation to prosecute contained within international conventions prohibiting genocide, war crimes and torture, 526 repeated UN General Assembly resolutions condemning amnesties for such crimes, 527 and moreover the guaranteed rights of victims of serious violations of international criminal law. 528
518 Gusmao, Considering a Policy of National Reconciliation, 123; Sarkin and Daly, 719; however, OConnell (at 300-301) argues that as far as victims are concerned, it would be psychologically unproductive for the perpetrators to receive penalties that a victim considers incommensurate with the atrocities. 519 Mendeloff, 360. 520 Teitel, 54. 521 Gusmao, Considering a Policy of National Reconciliation, 121. 522 Ibid., 122. 523 Ibid., 121. 524 Slye, 178, 244-245. 525 Simunovic, 702-703; Jrvinen, 38; Hirst and Varney, 29; Stahn, 958 (note 50); International Commission of Inquiry on East Timor, Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726 (31 January 2000), Part B, [5]; Bohl, 567; Slye, 245; moreover, the UN Secretary-General has expressly proclaimed that the United Nations will not officially endorse amnesties granted for genocide, war crimes, crimes against humanity or gross violations of human rights (Report of the UN Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, [10]). 526 See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 5(2); Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951), Article VI; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Articles 146 and 148. 527 For example, United Nations General Assembly Resolution 3074 (3 December 1973), [1]: War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation
On the other hand, some commentators have argued that every nation emerging from conflict with a democratically-elected government should have the right to choose what type of mechanism it employs in dealing with a violent past, 529 and moreover any method imposed from the outside would represent a new wave of judicial colonialism. 530 However this contention relies upon an absolute form of state sovereignty, the very doctrine that transitional justice theory and international human rights law sets out to partially erode. 531 As noted by Drumbl, genocide, crimes against humanity and war crimes should not be considered crimes that merely violate domestic laws (such as those of Indonesia and Timor-Leste), but should be considered crimes against the entire international community: offenses [sic] against us all. 532 According to Bassiouni, the line should be drawn at international crimes of a jus cogens character, which incorporate a duty to prosecute or extradite. 533 It has been persuasively argued that genocide, crimes against humanity and war crimes fit into such a group. 534
Therefore, despite the benefits of conditional amnesties as a transitional justice mechanism, to create a regime of such amnesties for the perpetrators of serious crimes would be in violation of international law. 535 Although Sarkin and Daly note that crimes of state are both legal and political [and] [r]econstruction of community likewise has both legal and political dimensions, 536 according to human rights advocates, support for the international norms of human rights is a crucial part of post-conflict reconstruction and democratisation, 537 not to mention ensuring the continued credibility of the UN human rights monitoring system and international law in general. 538
and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, punishment. 528 Slye, 182-184; these are the rights to accountability, truth, reparations and popular participation (at 240). 529 Thankur, 11; Ratner, 735-736; Nino, 134; Malamud Goti, 15. 530 Thankur, 11. 531 Kiss, 18. 532 Drumbl, 540; see also Teitel, 60. 533 Bassiouni, 65. 534 Ibid., 68: The legal literature discloses that the following international crimes are jus cogens: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture (emphasis added); see also Restatement (Third): The Foreign Relations Law of the United States, [702, n]; Amnesty International and Judicial System Monitoring Programme, [11.5]. 535 Slye, 245. 536 At 688; these comments have been echoed by President Gusmao (Gusmao, Volunteerism, 80). 537 Jrvinen, 38; Human Rights Watch, Relevant Aspects of Justice and the rule of law: the role of the United Nations, taking into account the Report of the Secretary-General on The rule of law and transitional justice in conflict and post-conflict societies, Available: http://hrw.org/english/docs/2004/09/30/global9454.htm (1 October 2006); Report of the UN Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, [6], [17], [31]; Amnesty International, AI Report 2004 - Building an international human rights agenda: Reforming and strengthening the justice sector, Available: http://web.amnesty.org/report2004/hragenda-4-eng (1 October 2006). 538 Drumbl, 592; Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither.
What of pardons? Obviously pardons for international crimes differ from amnesties in the sense that the perpetrators subject to pardons will (usually) have been convicted and sometimes will have served part of their sentence. 539 As compared with the more established doctrine on the illegality of amnesties, pardons granted at some stage after conviction for offences of a serious international criminal nature have been more subject to dispute amongst jurists. Alston has held that:
amnesties, pardons and similar measures of impunity for genocide, crimes against humanity and war crimes [are] measures that are prohibited under international law when they prevent judicial determinations of guilt or innocence, the emergence of the truth or satisfactory reparations. 540
Moreover, Ratner notes that:
the increased discussion of accountability especially the attention it has received from the Human Rights Committee and the Inter-American Commission and Court suggests that the prospects for a norm against blanket amnesties for former officials is stronger than one against trials followed by pardons of those convicted. It is notable that each amnesty found illegal by a treaty monitoring body has been a blanket amnesty; those bodies have not yet had a chance to opine about pardons. 541
According to these scholars, a pardon after conviction would not appear contrary to international law standards. However, Orentlicher qualifies this contention by her observation that:
the duty to punish grave violations of comprehensive human rights treaties [such as the Genocide and Torture Conventions] surely would be breached by a State Partys consistent failure to impose punishment commensurate with the gravity of the crimes. 542
Regardless, it appears that amnesties, whether of a blanket or conditional nature, attract a great deal more agreement over their illegality than do executive pardons for the perpetrators of serious international crimes. Given pardons are not conclusively ruled out by international law, they remain an attractive transitional justice mechanism, if utilised for the right political ends.
Conclusion: Application to the Particular Circumstances of Timor-Leste
On the basis of the discussion above, I have identified executive pardons for perpetrators as an ideal compromise between the conflicting options of criminal trials and general amnesties. 543 However, for the retributive and restorative
539 Slye, 237; see note 517 (above). 540 Philip Alston, Richard Lillich Memorial Lecture: Promoting the Accountability of Members of the New UN Human Rights Council, Journal of Transnational Law and Policy 15 (2005): 49, 82, emphasis added. 541 At 744. 542 At 2605. 543 I did not reach a precise conclusion earlier as to whether or not executive pardons for serious international crimes breach international law standards. If that did turn out to be the case, President
benefits of pardons to be realised, the pardon could only be granted where the accused had already served part of their sentence. In the case of Timor-Leste, the practical advantages of granting pardons to those individuals convicted by the Special Panels were identified in Chapter Four. Given the solid theoretical basis now advanced for those pardons, this would appear an appropriate course of action for the executive government of Timor-Leste. There remain however three groups of former perpetrators untouched by this recommendation and who remain either not indicted, or at large:
1. perpetrators of crimes that were not the subject of SCU investigation, where those individuals continue to reside in Timor-Leste; 2. those lower-ranking East Timorese perpetrators (mainly militia members) indicted by the SCU but who are currently residing in Indonesia and hence are outside of Timorese jurisdiction; and 3. those Indonesian security personnel accused of planning, commanding and/or participating in militia operations, including individuals acquitted by the Jakarta ad hoc Court and subsequent appeals, and those individuals never indicted in Indonesia.
Referring back to the recommendations made in the conclusion to Chapter Four, in synthesis with the theoretical approach outlined in the present chapter, those individuals listed in the first group could be the subject of further investigations and prosecutions by a renewed Serious Crimes Process, which could be carried out within the programme of international assistance to be provided for through the United Nations Integrated Mission in Timor-Leste. 544 If convicted, they too could eventually be granted pardons after serving three [to] five years of their sentences, as supported by President Gusmao. 545
Members of the second group identified above might interpret this more conciliatory approach adopted by the government of Timor-Leste as an opportunity to end their exile in Indonesia and hand themselves in to East Timorese authorities. However, for those perpetrators residing in Indonesia who do not take up this offer of clemency, there would appear to be little chance that they could be brought to justice by any available means. As noted above, 546 any international justice mechanism would have to focus on the highest-ranking perpetrators, that is, those most responsible for the violations of international human rights and
Gusmao might consider granting pardons only to those militia members convicted of ordinary murder (prosecuted under the Indonesian or East Timorese criminal code, and hence a domestic crime), as opposed to murder as an element of a crime against humanity see Rome Statute, Article 7(1)(a)). Of those perpetrators who (at least prior to a mass prison breakout on 30 August 2006 at Becora Prison in Dili), remained serving prison sentences having been convicted by the Special Panels from 2000-2005, 17 were convicted for murder, 50 for at least one charge of crimes against humanity, and one for genocide (Judicial System Monitoring Programme, Keterangan Kasus SPSC untuk Tahun 2000/1/2/3/4). 544 See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]; UN Security Council Resolution 1704, [4]; Chapter Four, Conclusion. 545 Gusmao, Considering a Policy of National Reconciliation, 121; however, see note 543 (above), on the possible illegality of pardons for international crimes at international law. 546 See note 496 (above).
humanitarian law. 547 Moreover, granting a blanket amnesty for those lower-level perpetrators who do not return following the incentive of Presidential pardons would be a direct affront to the rule of law in Timor-Leste (not to mention, a breach of international law). A contradictory situation would result whereby those indictees who hand themselves over at the first opportunity would have to serve a few years in prison for their crimes, whilst those who wait in Indonesia for an amnesty law to be approved by Parliament would enjoy impunity on their eventual return.
Given the failure of the Indonesian criminal justice system to convict any of those accused of committing atrocities in Timor-Leste (bar Eurico Guterres), it would not be possible for pardons to be granted to those individuals in the third group. Moreover, the major advantages of blanket amnesty regimes described above (i.e. reintegration of perpetrators into the community, beginning afresh with a new moral code, making room for reconciliatory measures and relieving financial and logistical burdens on the relevant government) are benefits that would not arise in the present case with this third group of perpetrators, given that they are Indonesian citizens whose emancipation would not bring into operation any of these advantages in Timor-Leste. The circumstance peculiar to Timor-Leste that makes the application of transitional justice theories problematic is manifest. While the post-conflict initiatives (i.e. trials, amnesties) that the vast majority of newly- democratised nations adopt will only affect the population and institutions of their own nation, in the Timor-Leste example, the majority of perpetrators are currently residing in Indonesia, whilst the majority of victims and their families reside in Timor-Leste. Therefore, two nations are implicated here. 548
In Chapter Three I observed that President Gusmao favours amnesties being granted to the Indonesian accused, for geopolitical reasons. 549 Additionally, it was contended above that one of the two most common circumstances during which blanket amnesties are proposed occurs when former perpetrators are able to exercise some measure of power over the post-conflict government, 550 a hypothetical that mirrors the present situation. 551 However, the theoretical key to the present case is this: with the advent of international trials and the consequent ability of the international community to bear the geopolitical burden of staging such trials, the balance of power between perpetrators and victims is no longer the foremost consideration in choosing a transitional justice model. 552 Given this fact,
547 Commission of Experts Report, [61]; Simpson. 548 Laakso, 52. 549 See Chapter Three, President Xanana Gusmao and the Executive Government of Timor-Leste. 550 See Blanket Amnesties, above. 551 It might be argued that the CTF-mandated amnesties proposed by the governments of Timor- Leste and Indonesia are not blanket amnesties, but conditional amnesties, because a precondition to their award is the subject of the amnesty fully revealing the truth of their involvement in human rights violations (CTF Terms of Reference, [14c(i)]). However, as noted above (see note 481), a comprehensive reconstruction of the historical record of international crimes committed in Timor- Leste in 1999 has arguably already been carried out. Hence, it is unlikely that testimony obtained through the CTF would be of substantial benefit to society, and would justify a foreclosure of prosecutions against the witness. 552 Kiss, 7-8: here, it is noted that the ICTY was established during a time of continued instability in the Balkans region, whilst the ICC has launched an investigation into the situation in Darfur, Sudan, even whilst it is still unfolding.
and based upon the ample criminological justifications advanced above, international trials are the most appropriate way to deal with this third group of perpetrators.
Conclusion
By eliminating those practically, theoretically, and legally non-feasible institutional options in response to the serious crimes committed in Timor-Leste in 1999 and the subsequent failure of two judicial processes to bring all the perpetrators to justice, the following possible avenues of action remain:
- For the UN Security Council: o the mandate of the United Nations Integrated Mission in Timor-Leste could be extended in order to reactivate the prosecutorial and judicial components of the Serious Crimes Process, so that the planned renewal of investigations into outstanding serious crimes cases (including crimes other than murder) results in the conviction of perpetrators who remain in Timor-Leste; o a resolution could be passed to enable the International Criminal Court to exercise a one-off retrospective jurisdiction over the international crimes committed in Timor-Leste in 1999, with a view to prosecuting the high-ranking planners and commanders of militia operations (mainly Indonesian military officers), who have thus far escaped punishment for their actions; 553 and, o so as to fund collective and individual grants of reparations for victims in Timor-Leste, access to the International Criminal Courts Trust Fund for Victims could be authorised.
- For willing UN Member states: 554
o the use of universal jurisdiction to try those same high-ranking perpetrators at large in Indonesia and elsewhere (and to allow civil suits by Timor-Lestes victims) could be employed, where and when this becomes possible; o efforts could be made to encumber the lives of perpetrators living outside Timor-Leste using diplomatic measures, based upon those suspects listed in SCU indictments and Interpol Red Notices; and, o additionally, financial contributions to the International Criminal Courts Trust Fund for Victims, 555 or the Community Restoration Programme to be established under the auspices of UNMIT 556 could be made, in order to help finance reparations programmes.
- For the executive Government of Timor-Leste: o pardons could be considered for those perpetrators already imprisoned as a result of the Serious Crimes Process, so long as
553 Timor-Leste acceded to the Rome Statute on 6 September 2002, and therefore the ICCs spatial jurisdiction allows the investigation of crimes that were committed within the territory Timor-Leste, even if the perpetrators investigated are not of East Timorese nationality (see Rome Statute, Article 12(2)(a)). 554 As noted in Chapter Four, apologies from western states that supported the Indonesian occupation of Timor-Leste may also be beneficial for reconciliation at an international level. 555 See International Criminal Court Resolution ICC-ASP/1/Res.6, Annex, [2]. 556 See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [39(d)(i)].
those individuals would be able to live peacefully within independent Timor-Leste; 557
o perpetrators convicted of serious crimes by a renewed Serious Crimes Process (as described above) could serve only partial sentences, being pardoned after three or five years (this will depend on the penalty and on [the perpetrators] behaviour); 558 and, o East Timorese militia members returning from exile in Indonesia (encouraged by promises of clemency) could be extended the same treatment, if they were also eventually tried and imprisoned. 559
- For the Indonesian Government: o financial contributions to the International Criminal Courts Trust Fund for Victims, 560 or the Community Restoration Programme to be established under the auspices of UNMIT 561 could be made; 562 and, o in conjunction with the government of Timor-Leste, a decision could be made to disband the CTF, as it has been effectively made redundant as 1) a truth-seeking mechanism, 563 and 2) a source of clemency for perpetrators residing in Indonesia and Timor-Leste (if a programme of international trials for high-ranking suspects and executive pardons for low-ranking suspects is followed).
However, most of the strategies listed above are unlikely to be adopted by the major international players. It is extremely unlikely that the UN Security Council would pass a resolution retrospectively extending the ICCs jurisdiction, considering many western nations have been prepared to disregard calls for an international justice process in Timor-Leste, in the interests of maintaining their relations with Indonesia. 564 The worlds biggest Muslim nation is seen as key ally in the war against terror, 565 a struggle that has drawn the worlds attention away from issues such as Timor-Lestes struggles as an independent nation. 566
557 Whether or not an apology and/or confession has been given by a Timor-Leste based perpetrator might be one the factors to be taken into account by President Gusmao in deciding whether or not, and at what stage into the prison sentence, a pardon should be granted. 558 Gusmao, Considering a Policy of National Reconciliation, 121; see note 557 (above). 559 This strategy could be applied whether returning militia members are prosecuted within the existing serious crimes framework in Timor-Leste (Chapter Four, note 387), or by a renewed Serious Crimes Unit; additionally, see note 557 (above). 560 See note 555 (above). 561 See note 556 (above). 562 Note the CAVRs insistence that the Indonesian government pay reparations to victims (Chega!, Part 11, [10.16]). 563 See Chapter Five, note 481, on the comprehensive documentation of the 1999 violence that is already available. 564 Nevins, 163; note that a majority of Security Council members were uncomfortable in following the recommendations of the UN Commission of Experts in September 2005 (Letter Dated 2005/09/28 From the President of the Security Council Addressed to the Secretary-General). 565 Jolliffe, Compromising Justice in East Timor; Harris-Rimmer. 566 Jolliffe, Human Rights Abuses and Impunity; Harris-Rimmer.
At present, although renewed investigations into serious crimes cases are likely to take place within the new UNMIT framework, 567 there is no guarantee that those cases will then be effectively prosecuted through Timor-Lestes currently weak judicial system. 568 Moreover, far from being brought to justice for their alleged actions, the serious crimes suspects at large in Indonesia will be granted amnesty by the CTF if they cooperate with the Commissions truth-seeking agenda 569 over the final 12 months of its mandate. Although this overall course of action may be the safest for the East Timorese government to take in view of its vital economic and security relationship with Indonesia, 570 the ongoing impunity enjoyed by both low and high-ranking serious crimes perpetrators may continue to compromise the rule of law, 571 democratic governance, 572 and societal cohesion in Timor-Leste, 573
not to mention constituting a failure to vindicate the victims of serious crimes committed during 1999. 574
567 Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]. 568 Jolliffe, Human Rights Abuses and Impunity; see also Chapter Four, note 393. 569 CTF Terms of Reference, [14c(i)]. 570 See Chapter Four, Judicial versus Non-Judicial Mechanisms: General Outcomes, and Amnesties authorised by the Commission of Truth and Friendship, together with Presidential Pardons. 571 Marshall; Teitel, 54; Llewellyn and House, 359; Bohl, 583. 572 Jrvinen, 38; in Chapter Four, I noted that there is a social consensus amongst East Timorese for punitive justice to be carried out, at least against the highest-ranking suspects (Roper and Barria, 533; Commission of Experts Report, [381]). 573 Hasegawa; Marshall; Amnesty International, Timor-Leste: All parties must act resolutely to ensure justice for both current and past violations of human rights; East Timor Action Network, ETAN Statement on Recent Events in Timor-Leste. 574 Cohen, ii; Harper, 150.
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