Watch Indonesia! Information
and Analysis, March 29, 2005
Trading Justice for Friendship
An Analysis of the Terms of
Reference of the Commission of Truth and Friendship for Indonesia and East
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
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
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
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”.
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
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
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
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
8. Lack of Consultation and
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
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.
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