March 29, 2005
An Analysis of the Terms of Reference of the Commission of Truth and Friendship for Indonesia and East Timor
by Leonie von Braun
On March 9, 2005 Indonesia and East Timor signed a bilateral agreement creating a Commission of Truth and Friendship (CTF). The mandate and functions of this Commission, which is set to deal with the violent past of the two neighbouring countries, pose profound difficulties for those who strive for accountability for the human rights crimes in East Timor. The limited scope and political intentions of this Commission reflected in the TOR have led human rights organisations in both countries and victims’ groups to protest strongly. They fear that victims’ rights will be discarded and that the Commission is a political deal to fend off the recommendations of the newly established UN Commission of Experts. The terms of reference (TOR) of the CTF must be changed significantly by the parliaments of both states if they are to achieve truth and accountability for the victims of the Indonesian occupation period in East Timor.
The main points viewed critically in this analysis are:
- The timeframe is wrongfully limited to the events of 1999.
- The Commission is barred from recommending prosecution of potential perpetrators and reparations for victims.
- The CTF is empowered to offer amnesties to individuals responsible for serious human rights violations and rehabilitation of those wrongly accused.
- The terms are perpetrator-centred and do not mention the interests and rights of the victims.
- The terms do not provide sufficient witness protection, nor is the integrity of the archives of the Commission for Truth, Reconciliation and Reception (CAVR) and the Serious Crimes Unit guaranteed.
- The CTF will merely review the work of the previous institutions leading to duplication. Especially the final report by the CAVR could be marginalized.
- The conclusion of the agreement for the CTF by East Timor’s President violates East Timor’s Constitution.
- The advisory role of the Foreign Ministers of both countries as well as the appointment procedure of the Commissioners raise doubts as to the independence and impartiality of the CTF.
1. Timeframe of the Mandate
The Commission will „review 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.”1 However, the events of 1999 cannot be separated historically and politically from the 24 years of Indonesian occupation before the Popular Consultation period. The wording of the paragraph outlining the time frame should be changed or interpreted to include the entire history of human rights violations i.e. the entire occupation period.
Although it is up to each post-conflict society to decide on the best methods of dealing with a brutal past, there are some crimes, which merit at least prosecution of those most responsible. A truth commission serves the important mandate to uncover the truth and foster social healing by giving the victims a forum to voice their plight. A truth commission should not however rule out prosecution of crimes, which by international consensus are to be prosecuted and accountability in a court of law achieved. The CTF explicitly rules out prosecution of individual perpetrators and intends to focus on „institutional responsibilities”. 2 In light of Indonesia’s failure to bring those to justice among the military leadership bearing the greatest responsibility and the acquittal of almost all 18 accused individuals before the ad hoc Human Rights Court in Jakarta, the focus of the CTF mandate implies a political move to put a definite end to all calls for prosecution. This principle of the CTF implies that Indonesia seeks to abstain from prosecutions indefinitely.
3. Amnesty and Rehabilitation
The CTF will have the mandate to grant amnesty to individuals, who cooperate with the Commission. This provision contrasts starkly to the inability of the Commission to suggest prosecution as a follow-up measure in its report and to the focus on „institutional responsibility”. In order to grant amnesty, hearings focusing on questions of the guilt of individuals would have to be held, for which no provisions and rules of procedure are included in the TOR. How can the CTF establish if an individual is guilty of human rights crimes if it is not provided with the capacity to investigate or to hear and to cross-examine witnesses? The broad wording suggests that anyone involved in human rights violations is entitled to amnesty notwithstanding the gravity of the crimes committed. As with the question of accountability, this provision goes against the internationally recognised standard that for certain crimes blanket amnesties are unlawful.
Also in South Africa amnesty could only be obtained after full cooperation with the Truth and Reconciliation Commission (TRC). Those who did not cooperate in revealing the truth were liable for prosecution. The terms of the CTF do not specify if those individuals who do not cooperate with the Commission will be prosecuted. It seems the amnesty provision is devised to put an end to all efforts of prosecution both in Indonesia and East Timor and will not be used as a truth-seeking device.
In addition to the amnesty provision, it is unclear how the CTF will evaluate if certain individuals were wrongly accused of human rights violations and recommend rehabilitation, if there is no specified procedure to determine a wrongful accusation and to assess guilt or innocence in an individual case. Generally, if someone has been wrongfully accused this matter should be determined in a Court of Appeal by an impartial and independent judge. The rights of the accused require due process and fair trial standards. A truth commission is not equipped to substitute court hearings. Moreover, a truth commission should not substitute an appeals mechanism.
The provision on rehabilitation also suggests that the CTF will not only review the facts collected and proven in the judicial hearings of the Special Panels but that it will also review the verdicts of the UN-sponsored court. In light of the newly established UN Commission of Experts, which will begin its review process shortly, this part of the mandate of the CTF will not only result in duplication. Questionable here is also the competence and standing of a nationally initiated body to evaluate the verdicts of an UN-initiated justice process.
4. Victim’s Rights
On the whole the CTF mandate and objectives centre on perpetrators and a diffuse understanding of societal reconciliation through „forward-looking”. Perpetrators are to be granted amnesty and rehabilitated by the CTF, while the many victims and their families in East Timor will not be able to share their experience in open hearings or written statements as was possible during the CAVR process. No measures for reparation by Indonesian authorities or individual perpetrators are provided in the TOR. Not even a trust fund seems to be planned. The perpetrator-centred mandate creates a truth commission focused on the interests of the leaders of the two states and underlines their persistent resistance to true accountability and acknowledgement of wrong-doing. The interests of the victims are not the focus of the „reconciliation” process.
5. Witness Protection
The lack of provisions regulating witness protection raises serious concerns. The section on „Right to Free Access” of the terms grants the CTF access to „all documents of the Indonesian National Commission of Inquiry on Human Rights in East Timor in 1999 (KPP-HAM), the Ad-hoc Human Rights Court in Jakarta and the Special Panels for Serious Crimes in Dili, and the CAVR final report.” Firstly, it is unclear if „Special Panels” also includes the case files of the Serious Crimes Unit. Secondly, witness protection especially protection of witnesses who have submitted sensitive information to SCU investigators is not mentioned in the terms. Only for persons interviewed directly privacy and confidentiality can be guaranteed if necessary by the Commission. It is unclear if the CTF can give persons who have testified or gave information in prior processes, which assured them confidentiality, the same adequate protection. Many who helped international SCU investigators could be alarmed that their information will now be turned over to the Indonesian government.
6. Duplication of the work of CAVR and the UN Commission of Experts
The mandate of the CTF stays short of what has already been accomplished by the CAVR and the justice institutions in East Timor. The Commission shall have the mandate to „reveal the factual truth of the nature, causes, and the extent of reported violations of human rights (…)”. For this reason it will „(i) review all the existing materials documented by the Indonesian National Commission of Inquiry on Human Rights Violations in East Timor in 1999 (KPP HAM) and the Ad-hoc Human Rights Court on East Timor, as well as the Special Panels for Serious Crimes, and the Commission of Reception, Truth and Reconciliation in Timor-Leste” and „(ii) examine and establish the truth concerning reported human rights violations including patterns of behaviour, documented by the relevant Indonesian institutions and the Special Panels for Serious Crimes (as contained in its indictment letters) with a view to recommending follow-up measures in the context of promoting reconciliation and friendship among peoples of the two countries.”
CAVR will issue its final report in July 2005 after four years of extensive research into the human rights crimes during the Indonesian occupation. So far the work of this Commission has been received well by East Timor’s population and international observers alike. Notwithstanding the profound lack of cooperation on part of Indonesian authorities, the report will document the history, nature, causes and consequences of the Indonesian occupation period thoroughly. It is highly unlikely that the CTF will be able to contribute new findings considering the limited scope of its investigation mandate. Additionally, the UN Commission of Experts promises an independent and impartial evaluation of the work and findings of the previous institutions. Both Indonesia and East Timor should include its recommendations into their plans to deal with their past. The CTF process threatens to overshadow and marginalize the results of the CAVR as well as the UN Commission of Experts process of evaluating the justice process in both states.
Finally, should the above mentioned list of sources for the CTF be exhaustive, many other national and international reports of the past years would be excluded from the review process. Especially the archives of the Indonesian Armed Forces should be on the list of sources of the CTF if it is to serve the purpose of revealing additional information on the nature and causes of the human rights violations and the involvement of the Indonesian military. Neither the ad hoc Human Rights Court nor the Special Panels ever had access to this important source of evidence.
7. Constitutional Law of Timor Leste
Although the President and the Prime Minister of East Timor gave a presentation on the CTF to the Parliament on March 3, 2005, at no stage has the Parliament’s authorisation been sought as is required under East Timor’s constitution. 3 As distinct from a failure to uphold constitutional obligations, the execution of an agreement on a subject matter beyond the government’s competence would arguably render the agreement to establish the CTF void from the beginning. Additionally, East Timor’s constitution entails an obligation to prosecute serious crimes in Section 160. 4 As described above the CTF is empowered to grant amnesty in respect to these crimes thereby preventing prosecution in accordance with Section 160 of East Timor’s constitution and international law. Moreover, Section 9.1 states that „the legal system of East Timor shall adopt the general or customary principles of international law.” One of these principles is that crimes such as genocide, crimes against humanity and war crimes are crimes under international law. Perpetrators of such crimes are to be held accountable. East Timor is thus obliged to prosecute crimes of this nature in its courts when they occurred on its territory or its citizens are concerned. Even the principle of universal jurisdiction for such crimes is becoming such an internationally recognized standard.
8. Lack of Consultation and Independence
The CTF was developed by the executive branches of the two respective states. Neither the legislature nor civil society organisations, human rights, or victims groups were consulted in this important process. This exclusion of the many interest groups explains why the TOR raises such extensive concerns, but also sheds light on the possible intentions of both governments behind the creation of this Commission: to finally close the chapter of having to deal with the human rights crimes in their mutual past. However, a consultative process would not only have served to limit the many dangers inherent in the current mandate of the CTF, it would also have made the entire process more genuine. Moreover, the observatory function of both Foreign Ministers raises doubts as to the independence of the CTF. According to the terms of reference the Commission will comprise of 10 members, 5 from each of the countries who will be chosen „among persons of high standing and competence drawn mainly from human rights fields, academia, religious and community leaders.” (para. 16) They are to be appointed by the respective heads of state after consultations following the constitutionally prescribed procedure in both countries. The Commission shall submit progress reports of its work to the heads of state on a periodical basis and the two Foreign Ministers shall observe the work and act in an advisory role to the Commission. This arrangement raises the concern that the CTF will be working under the continuous observation of the governments of both states, thus lacking the necessary independence to conduct impartial and thorough work.
1 TOR, para. 14.a..
2 „Based on the spirit of forward looking and reconciliatory approach, the CTF process will not lead to prosecution and will emphasize institutional responsibility.” (TOR, para. 13 b.); The Commission „does not prejudice against the ongoing judicial process with regard to reported cases of human rights violations in Timor Leste in 1999, nor does it recommend the establishment of any other judicial body.” (TOR, para.13. e.).
3 Section 95 of the Constitution prescribes the competencies of Timor Leste National Parliament. According to section 95.3(g) the Parliament has competency to grant amnesty. Furthermore, under section 95.3(f) Parliament is empowered „to approve and denounce agreements and ratify international treaties and conventions“. Section 115 in turn prescribes the competencies of government. According to section 115.1(f) the government is competent to negotiate and enter into international treaties and agreements on matters, which do not fall within the competence of Parliament. It follows, then, that any international agreement pertaining to the grant of amnesties falls within the competence of, and must be authorised by, Parliament. The National Parliament has not authorised the government or the President to agree to a body, which would interfere with the Parliament’s competency to grant amnesty.
4 According to section 160 of the Constitution „[a]cts committed between the 25th of April 1974 and the 31st of December 1999 that can be considered crimes against humanity of genocide or of war shall be liable to criminal proceedings with the national or international courts“.