gemBerichte

Rethinking Justice for East Timor

February 2005

Watch Indonesia!
Deutsche Kommission Justitia et Pax
Misereor
missio
Diakonie

Position Paper on the Reform of the International Justice Process in East
Timor and Indonesia

Written and edited by
Leonie von Braun and Monika SchlicherWatch Indonesia!

Watch Indonesia!, Planufer 92d, 10967 Berlin
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Table of Contents

Executive Summary

I. Introduction

II. The State of Justice in East Timor and Indonesia
1. The ad hoc Human Rights Court in Jakarta: Unwilling
2. The Special Panels for Serious Crimes in East Timor: Unable
2.1. Lack of Funding and Staffing
2.2. Lack of judicial and political cooperation by Indonesia
2.3. Lack of political support by the United Nations and East Timor

III. The Need for a Commission of Experts

IV. Judicial Solutions

1. The Special Panels for Serious Crimes should be continued
2. The Model of the Special Court of Sierra Leone
3. An International Criminal Tribunal for East Timor

V. Conclusions

VI. Recommendations

Rethinking Justice for East Timor

Position Paper on the Reform of the International Justice Process in East Timor and Indonesia

Executive Summary

AdHoc_Gericht

Taking the oath of a witness at the ad-hoc human rights court

Photo: Bernd Häusler

This Position Paper portrays the failings of the justice institutions for the prosecution of international crimes, such as crimes against humanity, in Indonesia and East Timor under the hospices of the UN and addresses the urgent need for rethinking these mechanisms. This human rights issue is especially urgent, as the UN Mission to East Timor will terminate in May 2005 according to UN Security Council decisions leaving little hope that perpetrators who bear the greatest responsibility will be brought to justice. The urgency is underlined by East Timor’s and Indonesia’s proposal to establish a Truth and Friendship Commission, which would possibly lead to a white-washing of the past and the deprivation of victims of their right to see justice done. In the interest of the victims, their families and the credibility of the UN’s engagement in international justice worldwide this paper argues that it cannot be an option to simply close the book. Too little has been achieved, too many promises have been made. In order to provide advice to UN and state policy makers the paper suggests four ways of reform: First and foremost this paper strongly urges the establishment of an International Commission of Experts by the UN Secretary-General, which is to analyse the previous achievements of both the Indonesian court system and of the UN hybrid court in East Timor and make recommendations on how best to proceed. Additionally, we propose three judicial reform strategies. In this paper we argue that, as a minimum, the serious crimes process must be continued in East Timor with UN support and enhanced resources, but that the justice process could be far more effective if an international, completely independent tribunal were established to ensure cooperation from Indonesian authorities. An alternative proposal is to reform the serious crimes system in East Timor according to the structure of the Special Court for Sierra Leone.

I. Introduction

Five years after the UN-sponsored Popular Consultation on the question of independence and the end of Indonesia’s occupation of East Timor the process of bringing those to justice who are responsible for crimes against humanity committed on the territory of East Timor in 1999 has stalled. During the referendum period in East Timor up to 1.500 civilians were killed by Indonesian soldiers and local militias, 70% of the infrastructure was destroyed as part of a ‘scorched earth policy’ of the Indonesian military leadership and up to 200.000 people were forcibly displaced to West Timor. Under Indonesian military occupation (1975-1999) up to 250.000 people are estimated to have died due to the war-like situation under occupation and its consequences such as hunger and deprivation.

Neither the ad hoc Human Rights Court in Jakarta nor the UN-sponsored Courts system in East Timor have been able to hold those accountable who bear the greatest responsibility. And while justice for East Timor remains elusive, the credibility of UN engagement to end impunity for the most serious international crimes is on the line, as is the development for the respect for the rule of law within Indonesia and East Timor.

In East Timor the Serious Crimes Unit and the Special Panels for Serious Crimes established by the United Nations have made a tremendous contribution to justice for past crimes. The prosecutors of the Serious Crimes Unit have indicted up to 400 individuals. 70 have received prison sentences. However, due to a lack of cooperation on part of Indonesia’s political and judicial authorities, East Timor’s Government and the United Nations Court in Dili has been unable to put on trial those among the Indonesian military and administration bearing the greatest responsibility for the crimes. This situation creates, among the East Timorese population, the impression of unfair treatment of low-level East Timorese perpetrators. Furthermore, the UN-sponsored prosecutors and judges must terminate their work in May 2005 as part of the completion strategy authorised by the Security Council. With the termination of the work of the Special Panels the justice process for the crimes committed during the referendum period in East Timor will undoubtedly be considered to be a failed endeavour of international justice.

This submission will describe the structural and political problems of both the ad hoc Human Rights Court in Jakarta and the Special Panels of Serious Crimes in East Timor using the case ‘Deputy General Prosecutor against Wiranto and others’ to illustrate the causes and consequences of the failure of this process. The submission seeks to draw attention to this issue in East Timor and Indonesia during the 61. Session of the UN Commission on Human Rights (UNCHR) and presents recommendations to the Commission on how the process can be improved in the future. It also seeks to draw the UN Secretary-General’s, states’ and policy-makers’ attention, in the hope that this chapter in the history of human rights violations will be resolved soon.

The failure of the justice process in East Timor and Indonesia is not only a pressing concern regarding the impunity of human rights violations. It goes to the heart of the efforts of the United Nations to install effective international justice mechanisms. This particular process should not be set aside without proper review and follow-up measures that ultimately lead to the fulfilment of the international community’s promises. Since the temporal jurisdiction of the International Criminal Court (ICC) begins in July 2002, only the UN can act in this matter.

II. The State of Justice in East Timor and Indonesia

1. The ad hoc Human Rights Court in Jakarta: Unwilling

After the violence, which was initiated and perpetrated by Indonesia’s Armed Forces in conjunction with the local administration, police forces and militias, in East Timor escalated in 1999, there was consensus to hold those responsible for the gross human rights violations accountable under international criminal law. This was reiterated in Article 16 of the Security Council Resolution 1272 (1999) of October 25, 1999 1 , which established the mandate of UNTAET (United Nations Transitional Administration for East Timor). Immediately after the bloodbath of September 1999 the UNCHR held a special session – the fourth in the history of the Commission – and adopted a resolution requesting the Secretary-General (SG) to establish an International Commission of Inquiry. This commission then travelled to Dili, the ravaged capital of East Timor, and to Jakarta to assess the scale of violence and to determine the nature and causes of the human rights violations. It concluded in its report to the Secretary-General that:

„There is evidence that the policy of engaging militias was implemented by the KOPASSUS (Special Forces Command of TNI) and other intelligence agencies in the Indonesian army. The policy manifested itself in the active recruitment, funding, arming and guidance and of the provision of logistics to support the militias in intimidation and terror attacks. (…) 2

There is evidence to show that, in certain cases, Indonesian army personnel, in addition to directing militias, were directly involved in intimidation and terror attacks. (…) 3

The Commission is of the view that ultimately the Indonesian army was responsible for the intimidation, terror, killings and other acts of violence experienced by the people of East Timor before and after the popular consultation.” 4

The Commission further noted that, since Indonesia had repeatedly acted against UN Security Council decisions, the „United Nations, as an organisation, has a vested interest in participating in the entire process of investigation, establishing responsibility and punishing those responsible and in promoting reconciliation. Effectively dealing with this issue will be important for ensuring that future Security Council decisions are respected.” 5

The Commission, like other actors at the time, recommended the establishment of an international criminal tribunal by the Security Council. Instead, Indonesia’s offer to deal with prosecutions in its national judicial system was considered the preferred option. Thus, the UN stepped aside to allow Indonesia to set up its own ad hoc Human Rights Court, but kept the option of creating an international criminal tribunal open in case Indonesia should fail to adequately and effectively prosecute suspected perpetrators.

Four years after the first trials began in Jakarta it is clear that Indonesia’s judicial system has not lived up to the standards it promised to uphold with the law establishing the ad hoc Human Rights Court 6. In almost all the cases, which had been brought before the ad hoc Human Rights Court in Jakarta (involving a total of only 18 defendants), a final verdict has been issued. Of the six defendants who had been convicted, only the former Governor of East Timor, Abilio Soares, had to spend a few weeks in prison, before the Supreme Court overturned his sentence and he himself was acquitted. The 10-year prison term handed down to the militia leader Eurico Guterres has already been halved; his trial is the only one still continuing, whereby, pending appeal, Guterres remains free. Major General Adam Damiri, the highest-ranking Indonesian military officer among the defendants, was sentenced to three years in prison after his trial in the court of first instance; his conviction has also been overturned, with the court of last instance stipulating his acquittal.

The Prosecution failed to indict some of the most prominent suspects such as General Wiranto, former Minister of Defence and Commander-in-Chief of the Indonesian Armed Forces (Tentara Nasional Indonesia) and João Tavares, the former Commander-in-Chief of the militias even though they had been recommended for investigation by Indonesia’s national human rights commission Komnas-HAM.

The low turnout of the Jakarta trials has been attributed by numerous expert observers 7 to result from the prosecution’s lack of effective engagement and the judges lack of will to mend the prosecution’s failings during trial and through their verdicts. The fact that some of the accused were actually convicted is attributable to the courage and competence of a handful of judges who applied the law despite the obvious lack of strategy on part of the prosecution. Intimidation of witnesses and court personnel by the TNI during trials was also reported. The judgments of the Court also do not reflect the actual nature of the crimes committed and the responsibility of the military. The crimes are portrayed as being part of violence that erupted spontaneously between two rival groups of society in East Timor. The de facto control of the TNI over the militias was not addressed during the trials.

Furthermore, although it is to be commended that the law establishing the ad hoc Human Rights Court was passed, it is unfortunate that its temporal jurisdiction was restricted to the events surrounding the Popular Consultation in 1999 and does not include human rights violations during the occupation period from 1975-1999. The Court’s jurisdiction was thus stipulated to cover only the months of April and September 1999 and only crimes perpetrated in Dili, Liquiça and Suai. A trial observer has explained at length that this political limitation was, in fact, legally irrelevant, as under Indonesia’s inquisitory system it was the duty of the Court to investigate all relevant facts. For this reason, amongst others, it was difficult, if not impossible, to prove the ‘widespread’ or ‘systematic’ nature of the attacks, which are according to the Rome Statute and the Human Rights Courts Law the defining characteristics for murder, extermination, torture and the other crimes to be categorized as gross violations of human rights.

It is all the more outrageous that Indonesia would refuse to take serious action upon this law even for the discrete set of events in 1999. Should the international community accept the fact that not even the events of 1999 are investigated properly by the Indonesian national judicial system, the international community that looked away during the whole occupation period would now be doing the same again.

2. The Special Panels for Serious Crimes in East Timor: Unable

Parallel to the trials held in Jakarta the United Nations Transitional Administration for East Timor (UNTAET) established the Special Panels for Serious Crimes (SPSC) in Dili as part of the national judicial system to investigate and prosecute those responsible for human rights crimes in East Timor. The two panels consist of three judges each, with two international and one national judge on each bench. The Court of Appeals is another mixed panel part of the appeals court system of the Dili District Court.

The prosecution is dealt with by the Serious Crimes Unit (SCU), which was initially part of the Human Rights Unit of UNTAET, but later established as an independent sub-body of the national prosecution system in East Timor. It is staffed completely by international prosecutors funded by the UN and managed by an international professional, the Deputy General Prosecutor. The Deputy General Prosecutor reports directly to East Timor’s General Prosecutor who is in charge of the entire prosecution system including the ordinary crimes section since independence in 2002. The Defence Unit is now also staffed with international professionals funded by the UN. All organs of the specialized court contribute to capacity building of the judicial system by training local judicial personnel.

The idea that a Hybrid Court such as the Special Panels can effectively contribute to justice by avoiding the shortcomings of the two ad hoc international criminal tribunals established by the Security Council is generally commendable. However, this has not been realized in the case of East Timor. The two-pronged system established out of Indonesian and UN/East Timorese judicial institutions has stalled the justice process entirely. Philipp Rapoza, judge at the Special Panels, describes this dilemma fittingly:

„Many would say that the Special Panels have not done what they could have, because high-level perpetrators are still at large in Indonesia and mostly only „smaller fish” that either stayed in East Timor or returned have been put on trial. Some might say „Is it justice that an entire group escapes trial while only the smaller defendants are put on trial?” That is a legitimate question, but it is not within the mandate of the Special Panels to deal with this question, but for diplomacy and policy experts to resolve. The Special Panels can only operate within the framework that was established after 1999…”. 8

From the very beginning the Special Panels lacked proper funding, sufficiently qualified personnel and the political support by the United Nations, Indonesia and East Timor, which would have been necessary to fulfil the promise of justice.

2.1. Lack of Funding and Staffing

Even though one of the main advantages of hybrid courts is that they are deemed far less expensive than their predecessors, the ad hoc international criminal tribunals, the low amount of financial support for the Special Panels has hampered their work from the outset.

While the prosecution and chambers were fairly well funded, the Defence Unit received little financial support from the UN. The group of East Timorese defence lawyers responsible for defending the accused were unprepared for the magnitude of their new task. Most of them lacked the judicial training and experience to prepare cases sufficiently and match the international prosecution’s work. In the first cases before the Special Panels the defence did not call witnesses, and it is possible that many proceedings did not fulfil international fair trial standards. The principle of equality of arms was never fully realized.

Furthermore, the recruitment of judicial personnel slowed to such an extent that the Appeals Chamber was not functioning for almost an entire year. Many pending cases could not be appealed between 2001 and 2002 because there were not enough judges on the bench. In the Special Panels, a lack of court personnel such as interpreters, secretaries and clerks made it difficult for judges to hand down written judgments on time. In many proceedings translation is necessary not only in the four official languages of the courts (English, Portuguese, Indonesian and Tetum) but also into local dialects. The lack of simultaneous interpretation facilities and translation personnel has contributed to the fact that many of the proceedings were lengthy and difficult to follow by court officials and the public.

2.2. Lack of judicial and political cooperation by Indonesia

The main factor hindering the effective deliverance of justice has been the profound lack of political support for the hybrid court. From the outset Indonesia refused to cooperate with the specialized court in Dili. The Memorandum of Understanding between UNTAET and Indonesia, which should have created the basis for judicial cooperation between the two court systems, especially between the Serious Crimes Unit and Indonesia’s national prosecution, was never implemented into law by Indonesia’s Parliament. It has never been considered binding by Indonesia’s judicial institutions as it fell short of a bilateral agreement. The early attempts to obtain evidence and access to witnesses by prosecutors of the Serious Crimes Unit failed. During this period Indonesia consistently maintained that it was dealing with the process on its own and that there should not be interference from outside.

The Serious Crimes Unit, on the other hand, set 10 priority cases dealing with the worst atrocities of the 1999 popular consultation period. In all of these cases it became clear that the main perpetrators were to be found among Indonesian military and police personnel directing the militia attacks. None of these perpetrators were handed over by Indonesian authorities even though arrest warrants were obtained. The Special Panels can exercise universal jurisdiction, but cannot hold trials in absentia. Thus, all those convicted by the Special Panels are former militia leaders or members who were unable to flee to West Timor or who decided to return to East Timor after the conflict.

2.3. Lack of political support by the United Nations and East Timor

UN prosecutors of the Serious Crimes Unit stepped up their efforts to achieve accountability in 2002 when it became clear that the Jakarta trials would not render justice. In an indictment issued February 23, 2003 General Wiranto and his direct subordinates were accused of murder, persecution and deportation as crimes against humanity in East Timor 9. Through this indictment the prosecutors sought arrest warrants from the Special Panels for the indicted individuals. However, after the indictment had been submitted the Office of the UN Secretary-General released a press statement clarifying that it was not a UN institution, which had indicted Wiranto but East Timor’s national prosecution system 10. The process further stalled because only one arrest warrant (for the lowest perpetrator in Wiranto’s chain of command) was issued by the Special Panels. In 2004, UN prosecutors made a final attempt to secure an arrest warrant for General Wiranto and submitted a comprehensive legal brief, which summarized the evidence against him 11. This brief led to the issuance of the arrest warrant in May 2004 by a newly assigned international judge of the Special Panels 12. At the time this legal brief was submitted, Indonesia’s presidential campaign was in full swing with Wiranto as one of the top contenders for the position. In this situation, East Timor’s government refused to risk new conflict with its powerful neighbour and ordered the General Prosecutor not to issue the arrest warrant to Interpol. The UN did not protest this course of action.

The case of Deputy General Prosecutor against Wiranto and Others illustrates the weaknesses of the international justice system established in East Timor by the United Nations. However, understanding these weaknesses is imperative to finding solutions for the future. Considering that the Special Panels will terminate their work in May 2005 with the end of UNMISET, decisions must be made for the justice process to continue in an effective manner.

The following structural decisions could have prevented the process from failing or at least could have made it stronger given the fragile political climate in East Timor:

  • In hindsight, the process in Indonesia should have been monitored more closely by the UN and criticized openly and more vigorously. The threat of an international tribunal could have been reiterated and used to ensure that justice is done.
  • The Special Panels should have been created in a way that would have prevented political influence. For example an international prosecutor could have been put in charge of the Serious Crimes Unit who would not have been subject to pressure like his national colleague.
  • A review of the performance of judicial personnel sent and funded by the UN might have prevented a lack of professional conduct. A Management and Oversight Committee comprised of donor countries and the UN like the one created for the Special Court for Sierra Leone, which monitors and evaluates the performance of the court on a regular basis, could have been created for the Special Panels as well.
  • By showing a lack of political support for the institution it established and its personnel on the ground the UN left East Timor’s leaders to face the imminent threat of conflict with its neighbour on its own. East Timor could not „hide” behind a UN initiated and controlled process anymore.

Considering all the factors that have hindered the justice process in East Timor, it is highly commendable that the UN prosecutors and judges have managed to perform as effectively as they have. By formulating and issuing up to 400 indictments the prosecutors have contributed significantly to establishing the truth and historical background of the human rights crimes. The judgments of the Special Panels will remain an important and objective source for judges, prosecutors and historians in East Timor and around the world.

III. The Need for a Commission of Experts

The Secretary-General has stressed his commitment to accountability for international crimes and has announced the composition of an independent Commission of Experts to review the prosecution of serious human rights violations committed in 1999 in East Timor. The SG needs to report back to the UN Security Council about the results of the work of UNMISET and the serious crimes process before the mission ends in May 2005. An expert assessment of the failures of the Jakarta trials and the Special Panels could provide the SG with workable alternatives.

Regrettably, the establishment of such an expert commission is resisted by Indonesia, which fears that the experts will recommend the creation of an international tribunal against major Indonesian perpetrators. The government of East Timor has not publicly opposed the expert group, but is prioritizing good relations with Indonesia over victims’ rights, and they have been trying to identify alternatives to the proposed group of experts.

One of these alternatives is the proposal to establish a Truth and Friendship Commission between Indonesia and East Timor. In December 2004 the governments of Indonesia and East Timor announced that they will establish a common Truth and Friendship Commission as an alternative to the justice process and notified the SG of their plans. This proposal is strongly opposed by civil society and human rights organisations worldwide, in East Timor and Indonesia because it is feared that this Commission will result in a whitewash of the past.

East Timor’s new Bishop, Alberto Ricardo da Silva, stated in opposition to the planned Truth and Friendship Commission: „What Kofi Annan says or not, what Timorese leaders want or not, the position of the church is the same, it’s clear and firm. We need justice, justice must be one…When a person steals, and they’re not tried, where are we?” 13

Proposed by East Timor’s Minister of Foreign Affairs, José Ramos-Horta, the establishment of a Timorese-Indonesian Truth and Friendship Commission would look not at the failure of justice since 1999, but at the events of 1999 and facilitate symbolic efforts, such as naming perpetrators and encouraging them to apologize for their actions.

We have strong concerns about this proposal as it denies victims the essential right to justice and perpetuates impunity. It allows Indonesia to go scot-free after failing to pursue its obligations to genuinely prosecute those responsible for gross violations of human rights. It denies the value of the several authoritative accounts that already exist or are being finalized, such as the Final Report of the Timorese Reception, Truth and Reconciliation Commission (CAVR), which will be submitted before the CAVR is dissolved on July 7, 2005. In addition, this mechanism would rule out UN engagement. As the UN initiated and controlled the justice process in East Timor it has a fundamental interest in preventing its failure. The UN should stay involved and ensure that the negative legacy of its justice endeavours be corrected. An international expert commission would allow the UN to evaluate its justice process and supply the basis on how to proceed through expert advice. Timorese governmental support for this Truth and Friendship Commission is not an insurmountable obstacle, as continued UN engagement would act as a counterweight to the pressure by East Timor’s powerful neighbour.

The second alternative to the expert commission is to establish an International Truth Commission. Although this mechanism would include the services of international personal in addition to Indonesian and Timorese human rights experts, it would also not suffice to rule out the concerns stated above concerning the Truth and Friendship Commission.

Generally, impunity creates a social demand that cannot be simply put aside by those in power even after decades. Cases from Africa, Europe and South America show that it is politically unwise to close the door to the rights of victims under the assumption that little can be done currently. Political circumstances are changeable and new opportunities will always emerge where the rights of the victims will be reasserted. In recent years the general understanding has emerged that truth and reconciliation mechanisms cannot function as an alternative to judicial proceedings when crimes of a certain magnitude are concerned. Such commissions can only function as a supplement to judicial means, never as their substitute, even if the judicial proceedings have difficulties achieving justice.

IV. Judicial Solutions

Only judicial mechanisms best fulfil victims’ desire and right to see justice done. This premise is not only based on moral conviction, but on international norms and obligations developed by the UN in agreements, principles and through treaty law over the last century. It is now universally accepted that certain crimes cannot go unpunished. These crimes include genocide, crimes against humanity and war crimes. The two international criminal tribunals, both subsidiary bodies of the UN, have developed extensive case law on international criminal justice. 14

It would seem logical that the enforcement of international justice through UN institutions should not depend entirely on political circumstances in a certain region, but be applied equally as dictated by the law. The question of justice for East Timor poses numerous complicated problems that require creative solutions and the joint effort of not only the UN but also of the international community, the victims and their advocates. In the following section we propose three mechanisms that, provided they receive strong UN support, would be able to achieve accountability.

1. The Special Panels for Serious Crimes should be continued

As a minimum, we strongly encourage that the judicial process of the Special Panels be continued with UN support so as to facilitate the rational completion of its proceedings. If the UN supported serious crimes institutions are closed down indefinitely after May 2005, almost half the murder cases from 1999 would not have been investigated. The prosecutors of the SCU have already issued their last indictments in December 2004 in order to comply with the completion strategy requested by the Security Council.

Due to the strong opposition voiced repeatedly by President Xanana Gusmão and other government officials to the serious crimes process and the general weakness of East Timor’s national judicial system it is unlikely that proceedings against militia suspects will be continued without UN support. However, East Timorese civil society and church organisations consistently demand justice for the victims.

The mandate of the Special Panels should be extended after May 2005 until it is fulfilled and the prosecution, defence and courts should be supplied with enhanced resources in order to function more effectively. International support should definitely not cease before national staff can fully take over the serious crimes process. The need for further capacity building through the Special Panels and the Serious Crimes Unit as well as external experts in the ordinary crimes sector has again become apparent recently when it became known that none of the preparatory judges were able to pass the judicial examinations.

To ensure that the Special Panels are enabled to conclude their mandate an effective judicial cooperation mechanism should be concluded, which obligates Indonesia to cooperate fully with the UN Court. This could be a binding bilateral agreement negotiated under the hospices of the UN or another Security Council resolution. Without a viable cooperation mechanism it is unlikely that Indonesia will transfer indictees to the Special Panels. However, this cooperation mechanism would not be necessary should Indonesia honestly prosecute those bearing the greatest responsibility. It is therefore necessary to pursue both lines of argumentation.

Should the Special Panels be closed down in May 2005 the UN would have to acknowledge even more criticism of its justice efforts: Not only the top perpetrators in Indonesia would not have been prosecuted but also in East Timor the UN would have failed to bring most perpetrators to justice. Not only would the credibility of East Timor’s fledgling justice system be at stake but also that of the UN. We acknowledge the difficulties connected to the UN’s engagement in international justice but believe that in the case of East Timor there is a realistic chance to overcome the political and judicial obstacles.

2. The Model of the Special Court of Sierra Leone

The second proposal, which would enable a more efficient rendering of justice, would be to restructure the Special Panels for Serious Crimes. Here, the model of the Special Court for Sierra Leone could give some guidance. In this court system political influence is minimal as the Special Court is not part of the national justice system of Sierra Leone, but an independent international organisation. The Chief Prosecutor can act independently within the framework of his mandate. As stated above, this is not the case in East Timor where the Prosecutor General is subject to political interference. The internationally funded Deputy Prosecutor General of the Serious Crimes Unit should be granted the power to transfer arrest warrants to Interpol and ensure international cooperation. As East Timor is now an independent state this measure could only be introduced if East Timor were offered support in return. Strong lobbying work on part of UN officials and NGOs would be required to start a legal reform of the prosecution service.

Creating a stronger prosecution in cooperation with the East Timorese parliament would not solve the question of cooperation by Indonesia, however. The court would still reside in East Timor and perpetrators in Indonesia. Thus, granting the reformed hybrid court Chapter VII-powers to subpoena individuals backed by strong international support could solve the cooperation issue. The benefits of retaining a reformed hybrid system are clear: costs would remain lower than if an entirely new tribunal funded by the UN would be established; the proceedings would continue to be held close to the victims and witnesses; experts from the Special Panels could continue their work.

We strongly support the idea of a reformed hybrid court and encourage the discussion of this option.

3. An International Criminal Tribunal for East Timor

The most important option that should remain on the negotiation table is the establishment of an ad hoc international criminal tribunal set up by the Security Council like the tribunals for the Former Yugoslavia and Rwanda. This tribunal could be established in a Southeast Asian country close to both East Timor and Indonesia. It would be staffed by international criminal law experts as well as Indonesian and East Timorese lawyers. Its international status in addition to its geographical distance from both parties to the conflict would ensure independence and credibility. The Chapter VII powers could ensure more judicial cooperation than under the current hybrid court. To ensure that the East Timorese and Indonesian public are involved in the proceedings, outreach programs through media distribution should be provided.

Questions of costs, which have resulted as the main criticism of the two ad hoc tribunals, can be handled more efficiently. One possibility would have been to apply a model of voluntary contributions implemented in Sierra Leone supplemented by UN funds. Another would have been to limit the time frame to a small number of years.

In the case of the human rights crimes in East Timor only an international, independent institution can ensure that justice is done. It seems highly improbable that East Timor or Indonesia will create viable judicial institutions, which bring justice to the many victims of the Indonesian military occupation period. It is essential that this option be considered as East Timorese victims’ groups and civil society overwhelmingly support it even though it is the option most difficult to achieve politically. 15

Conclusions

It is time to acknowledge the failure of the justice efforts in East Timor and Indonesia in order to find new and more effective solutions. Taking on this issue is part of the overall mandate of the UN to uphold peace and to contribute to justice in the world. It is also in the interest of states supporting international justice initiatives that cost effective and qualified mechanisms are established by the UN. As described above this has not been the case in East Timor. However, the solution cannot be to simply shut down the existing court system. The mandate of the hybrid court has not been fulfilled yet.

We acknowledge the difficulties connected to the UN’s engagement in international justice but believe that in the case of East Timor there is a realistic chance to overcome the political obstacles. We hope that the proposals, we set forth above, will be helpful in this regard and will contribute to the discussion on the future of justice for East Timor.

VI. Recommendations:

Therefore, we urge the UNCHR

  • to express outrage that the proceedings before the ad hoc Human Rights Courts in Jakarta have amounted to “sham trials” leading to impunity;
  • to press the Government of Indonesia (GoI) to transfer indictees to the Special Panels for Serious Crimes in East Timor and to fulfil its obligation under international law;
  • to express outrage that East Timor’s government violates the principle of prosecutorial independence by pressuring the Prosecutor General not to submit the arrest warrant for Gen. Wiranto and others to Interpol;
  • to express dismay over the lack of support of the serious crimes process in East Timor by GoI, the government of East Timor and the United Nations;
  • to support the Secretary General in establishing an International Commission of Experts, which evaluates the justice process and to recommends future measures;
  • to offer expertise, cooperation and technical assistance to this commission;
  • to initiate the establishment of an ad hoc International Tribunal on human rights crimes in East Timor;
  • in the alternative, to propose reforms of the serious crimes process in East Timor modelled after the Special Court for Sierra Leone;
  • in the alternative, to support the continuation of the serious crimes process in East Timor after May 2005 under UN mandate with enhanced resources and support.

We ask the UN Secretary-General

  • to apply pressure on the GoI and East Timor to support the serious crimes process through political
    and judicial means;
  • to apply pressure on the GoI, in particular, to transfer indicted persons for trial before the Special
    Panels as prescribed by law;
  • to establish an International Commission of Experts to evaluate the justice process and render objective, expert advice;
  • to ensure that, at least, UN support for the serious crimes process is ensured notwithstanding any reform measures or establishment of new and more powerful judicial mechanisms.

We call on states and international policy makers

  • to apply pressure on the GoI to transfer indicted persons to the Special Panels in East Timor and, thus, to live up to its promises made to the international community in 1999;
  • to address the issue of judicial independence in East Timor and to make clear that such violations of the rule of law are not to be tolerated by democratic states;
  • to support the UN Secretary-General in the establishment of an International Commission of Experts;
  • to support the findings and recommendations made by the International Commission of Experts .

1 UN Doc. S/RES/1272 (1999).
2 United Nations, OHCHR, Report of the International Commission of Inquiry on East Timor to the Secretary General, UN Doc. A/54/726
or S/2000/59, January 2000, para. 137.
3 Ibid., para. 138.
4 Ibid, para. 140.
5 Ibid, para. 147.
6 Law No. 26/2000 on Human Rights Courts.
7 See: Justice for the Victims – A Legal Opinion on the Indonesian human rights trials concerning the crimes committed in East Timor in 1999, by Bernd Häusler (PDF file, 1,3 MB), March 2004, Publ. by Watch Indonesia!, Deutsche Kommission Justitia et Pax, Diakonisches Werk, Misereor, missio; Gerechtigkeit für die Opfer. Eine juristische Untersuchung der indonesischen Menschenrechtsverfahren zu den Verbrechen auf Osttimor im Jahr 1999, Bernd Häusler, April 2003 (PDF Datei, ca. 2,3 MB). Hrsg.: Deutsche Kommission Justitia et Pax, Schriftenreihe Gerechtigkeit und Frieden, Nr. 98, Bonn, April 2003, 272 S.;
Open Society Institute / Coalition for International Justice: Unfulfilled Promises: Achieving Justice for Crimes Against Humanity in East Timor, November 2004. http://www.justiceinitiative.org/db/resource2?res_id=102368
Intended to Fail: The Trials before the Ad Hoc Human Rights Court in Jakarta by David Cohen, edited by the International Center for Transitional Justice, August 2003, http://www.ictj.org/downloads/IntendedtoFailwithAnnexes–FINAL.pdf
8 Interview with Judge Philipp Rapoza taken by Leonie v. Braun in Dili, April 27, 2004 (on file with authors).
9 Deputy General Prosecutor against Wiranto and Others, Indictment, District Court of Dili, Special Panels for Serious Crimes, Case No. 5/2003 (23 February 2003).
10 UN News Centre, Timor-Leste, not UN indicts Indonesian General for war crimes, 26 February 2003.
11 Brief in Support of the Application for the Issuance of an Arrest Warrant for Wiranto, Deputy General Prosecutoragainst Wiranto, District Court of Dili, Special Panels for Serious Crimes, Case No. 5/2003 (19 March 2004).
12 Warrant of Arrest for Wiranto, Républica Democrática de Timor-Leste, Dili District Court, The Special Panels for Serious Crimes, Case No. 5/2003 (10 May 2004).
13 Cited in Timorese church opposes Indonesian deal on war crimes, Jill Jolliffe, AFP, 7 February 2005
14 SCU Update 1/2005 (www.scu-dili.org).
15 see: Judicial System Monitoring Programme
(JSMP): Justice for Timor Leste: Civil Society Strategic Planning; International
Conference: 23 – 24 September 2004: Conference Proceedings, Oktober 2004
http://www.jsmp.minihub.org/Reports/jsmpreports/JSMP%20Conference%20Reports/reports(e).doc

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