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Aftermath Timor Leste: reconciling competing notions of justice
E-Brief: Online Only issued 22 May 2006. Last updated 21 May 2007
Susan Harris Rimmer,
Analysis and Policy
Law and Bills Digest Section
Juli Effi Tomaras, Analysis
and Policy
Law and Bills Digest Section
Update includes recent developments such as the Joint Truth and Friendship
Commission hearings, the Secretary-General's 2006 report on justice and
reconciliation for Timor-Leste, the Dili riots, and the 2007 Presidential
elections.
Introduction
In 1999, Mary Robinson, UN High Commissioner
for Human Rights said of the violence in Timor Leste (previously known
as East Timor):
To end the century and the millennium tolerating
impunity for those guilty of these shocking violations would be a betrayal
of everything the United Nations stands for regarding the universal
protection and promotion of human rights.
20 May 2007 marks the seventh anniversary
of Timorese independence.
This e-brief gives a brief summary of the
transitional justice mechanisms employed in the case of Timor Leste and
the results so far.
See further:
United Nations, ‘High
Commissioner for Human Rights reports on the situation in East Timor as
the Commission on Human Rights considers holding special meeting’,
media release, HR/99/90, 17 September 1999.
Background: 1999 Violence and Occupation
After the September 1999 referendum vote to
separate from Indonesia, approximately 1500 Timorese died, 300 000 were
displaced to West Timor, and the infrastructure of Timor Leste was left
in ruins. However, there were serious violations against human rights
long before the 1999 vote, beginning with Indonesia’s occupation of the
island in December 1975.
Timor Leste became a Portuguese colony in
the 16th century. In 1960 it was deemed by the UN General Assembly a
‘non-self governing territory’. In 1974 the colonial power Portugal withdrew
from Timor Leste and a brief civil war followed. After achieving nine
days of independence, declared by the Revolutionary Front for an Independent
East Timor (Frente Revolucionária de Timor Leste Independente,
or Fretilin) on 28 November 1975, Indonesian forces occupied and annexed
Timor Leste.
An estimated 20 000 Indonesian troops were
deployed to the region by the end of 1975. While casualty estimates vary,
anywhere from 60 000–100 000 Timorese were probably killed in the first
year after the violence began in 1975. Timor was declared the 27th province
of Indonesia on 31 May 1976. Indonesia’s claim over Timor was never accepted
by the UN, and was only unilaterally accepted by one nation–Australia.
In 1979 the U.S. Agency for International
Development estimated that 300 000 East Timorese (nearly half the population)
had been uprooted and moved into camps controlled by Indonesian armed
forces. During the 25 year occupation by Indonesia, the UN documented
a series of massacres including in Kraras (August 1983), Santa Cruz (2
November 1991), Maubara and Liquiça (4–6 April 1999) and Dili (17 April
1999).
Importantly, the exact number of Timorese
deaths at the hands of the Indonesian military was not definitively known
until late 2005, with previous estimates ranging from 120 000 to 230 000.
On 12 November 1979, Indonesia’s foreign minister, Mochtar Kusumaatmadja,
estimated that 120 000 people had died in Timor Leste since 1975. Amnesty
International estimates that 200 000 died from military action, starvation
or disease from 1975–1999. A genocide expert, Ben Kiernan, has noted that
the deaths must also be seen in context of the total original population
base of just 700 000 people.
The Final Report entitled Chega!
(‘Enough’ in Portuguese) by Timor's Commission for Reception, Truth and
Reconciliation (CAVR) proves that an upper estimate of 183 000 died as
a result of both killings and deaths due to privation. CAVR's estimate
of the minimum total number of conflict-related deaths is 102 800 (plus
or minus 12 000). The report details that 18 600 non-combatant East Timorese
were killed or disappeared and at least 84 000 more died as a direct result
of displacement policies during Indonesia's occupation.
The cost in lives to the Indonesian military
of the long occupation is also not certain. Indonesian General Wiranto
stated in September 1999 that Indonesia lost 3700 troops during the first
five years of its occupation of the former Portuguese colony. Media outlet,
Associated Press, noted that this previously classified figure squared
with generally accepted estimates that between 5000 and 10 000 Indonesian
troops died in the quarter-century effort to keep Timor Leste, but also
confirmed that ‘[t]he final tally is still secret’.
The UN also noted the imprisonment of thousands
of activists (most notably Xanana Gusmão in 1992), the exile of thousands
more and incidences of torture, assault and inhumane treatment perpetrated
against Timorese resistance fighters and civilians; including systematic
gender persecution.
In January 1999, against a backdrop of economic
turmoil, a new climate of political liberalisation, and sustained and
mounting international pressure, Indonesian President Habibie suddenly
announced that the East Timorese would be allowed a referendum to decide
whether they wished to accept or reject ‘wide ranging autonomy’ within
the Indonesian Republic. A formal agreement between Indonesia, Portugal
and the UN was reached on 5 May 1999 which charged the United Nations
Mission in East Timor (UNAMET) to organise a referendum. According to
the agreement, Indonesia was to provide the security for the ballot. Voter
registration began on 16 July 1999, with teams of independent observers
reporting political violence by the Indonesian military (Tentara Nasional
Indonesia, or TNI) and paramilitary groups, allegedly designed to
intimidate voters.
A ‘popular consultation’ or referendum was
held on 30 August 1999. On 4 September 1999, it was announced that 78.5
per cent of the population had voted against Timor Leste remaining as
part of Indonesia, and therefore independence would be granted to the
territory. The announcement of the ballot result resulted in immediate
acts of violence, a ‘scorched earth’ policy, looting, massive evacuations
and forced deportation of the population, overseen by the departing Indonesian
military. In the months surrounding the 1999 vote, pro-Jakarta militias
killed an estimated 1400 people, burned towns to the ground, destroyed
80 per cent of the territory's infrastructure and forced or led more than
a quarter of a million villagers into Indonesian-ruled West Timor.
See further:
UN General Assembly Resolution
1542(XV) 16 December 1960.
Case
Concerning East Timor (Portugal v. Australia)
International Court of Justice General List No. 84, 1995 I.C.J. 90 (1995)
William Burr and Michael L. Evans, eds. ‘Ford and
Kissinger gave green light to Indonesia’s invasion of East Timor, 1975:
New Documents Detail Conversations with Suharto’, National
Security Archive Electronic Briefing Book No. 62, 6 December 2001.
James Dunn, East Timor: a rough passage
to independence, N.S.W.: Longueville Books, 2003.
Adam Schwarz, A Nation in Waiting: Indonesia’s
Search for Stability, Boulder: Westview Press, p. 205, 2000.
Amnesty International, ‘200 000 Dead. Enough is
Enough (advertisement)’, New York Times, 23 September 1999.
ABC Radio, ‘East Timor: Indonesia's
actions 'genocide' says expert’, Asia-Pacific, 29 August 2001.
Mark Forbes, ‘Indonesian
Rule 'Led to 100,000 East Timor Dead', Sydney Morning
Herald, 20 December 2005.
John McBeth, ‘Commentary: Juggling
Pragmatic Politics with Bloody Past’, The Straits Times (Singapore),
19 December 2005.
Associated Press, ‘Occupation
of East Timor Cost 3,700 Indonesian Lives-Wiranto’, 20 September 1999.
Agreement
Between the Republic of Indonesia and the Portuguese Republic on the Question
of East Timor Annex 1, Article 3.
Hamish McDonald ed. ‘Masters of Terror: Indonesia’s
Military and Violence in East Timor in 1999’, Canberra Papers
on Strategy & Defence No. 145, Canberra, Australian National University.
KPP-HAM, Full Report of the Investigative Commission
into Human Rights Violations in East Timor, 2002.
Establishment of the Mechanisms
Security Council Resolution 1264
approved the immediate dispatch of the Australian-led, International Force
for East Timor (INTERFET), and expressed concern at ‘reports indicating
that systematic, widespread and flagrant violations of international humanitarian
and human rights law have been committed in East Timor’ and stressed individual
responsibility for these acts.
In Resolution 1272 of 25 October 1999,
the UN Security Council established the UN Transitional Administration
in East Timor (UNTAET) as the executive and legislative authority from
25 October 1999 until Timor-Leste became independent on 20 May 2002. The
resolution also condemned all acts of violence in the Indonesian-claimed
province of Timor Leste, demanded that those responsible be brought to
justice and called for all parties to cooperate with investigations into
reports of systematic, widespread and flagrant violations of international
humanitarian law and human rights law.
Investigations into the post-ballot violence
were carried out by special UN teams, in particular the International
Commission of Inquiry on East Timor (ICIET). Indonesian investigations
were undertaken by the National Human Rights Commission (Komisi Nasional
Hak Asasi Manusia, or Komnas HAM) in late 1999. Komnas HAM used its
powers under a government regulation expressly issued for the purpose
to set up a special team, the National
Commission of Inquiry on Human Rights Violations in East Timor (Komisi
Penyelidik Pelanggaran HAM di Timor Timur, or KPP HAM), to investigate
human rights abuses in Timor Leste during the period from 1 January to
25 October 1999.
As a result of these investigations and other
discussions, three main transitional justice mechanisms were established
to address the crimes. Firstly, in Timor Leste the UN set up the Serious
Crimes Investigation Unit (SCU) and Special Panels of the Dili District
Court and the Commission for Reception, Truth and Reconciliation (CAVR).
The Special Panels within Dili District Court
were set up by UNTAET by Regulation 2000/15.
The Panels had exclusive jurisdiction over genocide, crimes against humanity,
war crimes wherever and whenever they occurred; and over murder, sexual
offences and torture that occurred in Timor Leste between 1 January and
25 October 1999. The UN withdrew its support for the serious crimes process
in May 2005 in the context of its overall downsizing from Timor.
Secondly, the CAVR was established by UNTAET
Regulation No. 2001/10
as an independent statutory authority that would inquire into human rights
violations committed on all sides, between April 1974 and October 1999,
and facilitate community reconciliation processes for those who committed
less serious offences. The Commission could not grant amnesty and had
to refer ‘serious crimes’ as defined to the Serious Crimes Unit. The
CAVR delivered its final report to Parliament in November 2005 but it
has not been released publicly. The International
Centre for Transitional Justice released a final copy of the report
on their website on 30 January 2006.
The CAVR’s mandate included: establishing
the truth regarding the human rights violations that occurred in the context
of political conflicts in Timor Leste between 1974 and October 25, 1999;
assisting in restoring the dignity of victims; promoting reconciliation,
and supporting the reintegration of individuals who committed harmful
acts through community-based reconciliation mechanisms; identifying practices
and policies that should be addressed to prevent future human rights violations
and to promote human rights; and referring human rights violations to
the Office of the General Prosecutor with recommendations for prosecution.
Thirdly, in Indonesia, Law 26/2000 on Human
Rights Courts was adopted by the Indonesian legislature in November 2000.
The law provided for the establishment of four permanent Human Rights
Courts and, for cases which took place prior to the adoption of the legislation,
the possibility of establishing ad hoc Human Rights Courts. The new courts
were to have jurisdiction over crimes against humanity and genocide, crimes
which until then had not been included in Indonesian domestic law. Presidential
Decree No. 96/2001 was issued by the newly installed President Megawati
Sukarnoputri in August 2001 establishing an ad hoc Human Rights Court
on Timor Leste. The jurisdiction was limited to only those crimes occurring
in the districts of Liquiça, Dili and Suai in the two months of April
and September 1999. The trials were completed in 2004. Appeals were
completed in March 2006.
The Secretary-General appointed a Commission
of Experts to report on the justice outcomes for Timor in February 2005
which was released on 15 July 2005. Timor Leste and Indonesia agreed
separately to hold a Joint Truth and Friendship Commission which began
in August 2005 with a one-year extendable mandate.
The UN Mission of Support in East Timor (UNMISET)
was to withdraw from Timor Leste entirely in May 2004, but the Secretary-General
announced the Mission would stay for another year but be dramatically
reduced from almost 3000 civilian and military personnel to 700 while
the country becomes self-sufficient.
In 2005, another extension was granted. The
United Nations Office in Timor-Leste (UNOTIL) was established by Resolution
1599 (2005) adopted by the Security Council on 28 April 2005, with
effect from 21 May 2005.
Special Panels for Serious Crimes Court, Dili
The serious crimes process in Timor Leste
was important as it was the only ‘internationalised’ process dealing with
the violence in Timor Leste. As Suzannah Linton notes:
The entire process is historic, for despite
international domination of the process, never before have East Timorese
judges sat in judgment over their fellow people, and never before have
East Timorese prosecutors and defence lawyers appeared as legal professionals
in their own land.
The process has global significance because
the UNTAET Regulations adopted the offences of the Rome Statute of the
International Criminal Court and the trials can therefore be considered
the first state application of the new global provisions, particularly
the crimes against humanity offence. Moreover, it is the first clear
example of a ‘hybrid tribunal’, a system that shares judicial accountability
jointly, between the state in which it functions, and the United Nations.
The Dili court fulfilled its
mandate on 20 May 2005. International observers often note with approval
that by its closure the UN-staffed Serious Crimes Investigation Unit had
filed 95 indictments with the Special Panels. Charges were filed against
391 accused persons and 55 trials had reached a verdict. The trials resulted
in 84 convictions and 4 acquittals. However, the remaining 339 suspects,
including General Wiranto, remain in Indonesia which refuses to cooperate
with extradition requests.
Timorese legal NGO, the Judicial
System Monitoring Programme, notes that in comparison, by September
2003, ICTR had indicted 81 persons while in January 2004, the ICTY had
indicted around 140 persons. This is despite a far greater amount of
funding and time than the SCIU, and noting that while the SCIU has around
15 lawyers in total, the ICTY has approximately 8 lawyers per case.
These numerical results give the impression
of efficiency, but could equally tell another story. Given the issues
with defence and appeals, such as a lack of public defenders, lack of
resources and so on, the quality of the Dili process warrants closer scrutiny.
Research has shown that limited resources
were given to the process by the UN. Three key problems with the process
remained:
- the continued lack of cooperation by Indonesia over securing perpetrators
which also limits access to potential victims;
- the inequity of outcome with convictions of low-level Timorese militia
in contrast to the impunity enjoyed by Indonesian military commanders;
and
- the uncertainty of future funding or commitment to the serious crimes
process once the UN withdrew.
President Gusmão has been damning about the
serious crimes process:
In the Serious Crimes Unit, we punish some
militias who are stupid enough to come back. I also think that the UN
is spending too much money on the Serious Crimes Unit. The lawyers there
earn more than I earn as President. And there is no infrastructure
for the judicial system in East Timor. We need a working competent,
free and functioning judicial system, not only in Dili, but also in
the country. I think the SCU can be there for 100 years for all the
stupid to come back across the border. In practical terms we don't see
any benefit from this.
See further:
Watch Indonesia. ‘Notes
on comments by Xanana Gusmão and Jose Ramos-Horta on dealing with past
human rights violations made during a Panel Discussion’, Paper read
at German Council on Foreign Relations in Berlin (Deutsche Gesellschaft
für Auswaertige Politik, DGAP), 20 October 2004.
Suzannah Linton, ‘Prosecuting
Atrocities at the District Court of Dili’, Melbourne Journal
of International Law, Vol. 2, 2001.
Report
to the UN Secretary-General of the Commission of Experts to review the
prosecutions of serious violations of human rights in Timor Leste
(then East Timor) in 1999, S/2005/458, 15 July 2005.
JSMP, The
Future of the Serious Crimes Unit, January 2004, Dili.
David Cohen, ‘Seeking Justice on
the Cheap: Is the East Timor Tribunal Really a Model for the Future?’,
East West Centre No. 61 at 5, 2002. For general descriptions of
the difficulties in building the judicial system in Timor Leste, see Hansjörg
Strohmeyer ‘Collapse and Reconstruction of a Judicial System: The United
Nations Missions in Kosovo and East Timor’. Symposium: State Reconstruction
After Civil Conflict’, American Journal of International Law, Vol.
95, 2001, pp. 46–63, and Suzannah Linton, ‘Rising from the ashes: the
creation of a viable criminal justice system in East Timor’, Melbourne
University Law Review, Vol. 25, April 2001.
Jakarta ad hoc Human Rights Court
Indonesia held the Timor Leste trials at the
Indonesian ad hoc Human Rights Court in Jakarta. They concluded in 2004.
These trials have been widely denounced by NGO observers as a ‘sham’ (see
further reading below). All 16 Indonesian military and police defendants
were acquitted. Only the civilian Timorese Governor of Dili served three
weeks in jail before he was released on appeal. Another Timorese militia
leader Eurico Guterres was convicted and had his five-year sentence increased
to 10 years on appeal.
As the trials were in progress, the UN High
Commissioner for Human Rights Sergio de Mello reported to the 59th session
of the Human Rights Commission in April 2003 his concern that;
the limited geographical and temporal jurisdiction
of the Court; the lack of experienced prosecutors and judges; the intimidating
and, at times, hostile, courtroom treatment of Timorese witnesses by
some judges, prosecutors and defense counsel; the causes and consequences
of non-attendance of Timorese witnesses at the proceedings; and the
lightness of the sentences imposed, which bear no reasonable relationship
to the gravity of the offences committed… the failure to put before
the court evidence that portrays the killings and other human rights
violations as part of a widespread or systematic pattern of violence
seriously undermines the strength of the prosecution's case and jeopardizes
the integrity and credibility of the trial process.’
Adam Ereli, deputy spokesman for the U.S.
State Department stated after the acquittal of the convicted Indonesian
military figures on November 2004:
We are dismayed by this decision, and we
are profoundly disappointed with the performance and record of the Indonesian
ad hoc tribunal. In our view, as a result of this appeals decision,
only two of the eighteen defendants have been convicted, and both individuals
are ethnic Timorese and received sentences below the ten-year minimum
set by law. We think that the overall process was seriously flawed and
lacked credibility.
The European Union, in a Declaration by the
Presidency, stated that the trials ‘have failed to deliver justice and
did not result in a substantiated account of the violence’.
The most thorough examination of the Jakarta
trials has been undertaken by Professor David Cohen in late 2003 on behalf
of the International Centre for Transitional Justice entitled provocatively
Intended to Fail: The trials
before the Ad Hoc Human Rights Court in Jakarta. Ian Martin
in his preface to this analysis summarises Cohen’s conclusions in the
following manner:
The inescapable conclusion of this report
is that the trials as a whole must be regarded as a failure on every
level, from technical competence to institutional integrity and political
will. Some may point to the fact that six individuals, including high-ranking
officials, have been convicted. However the report shows that this
is more due to the notable bravery of a few individual judges than to
a credible system of justice.
See further:
Jill Joliffe, ‘Compromising justice in East Timor’, Far Eastern Economic
Review, April 2006.
Commission on Human Rights, Situation of Human Rights in Timor Leste,
Report
of the United Nations High Commissioner for Human Rights, UN Doc.
E/CN.4/2003/37, 4 March 2003.
Voice of America News (2004). Voice of America Editorial. Radio Scripts
- EDITORIAL 0-11521.
Declaration by
the Presidency on behalf of the European Union on the ad hoc Human Rights
Tribunal for crimes committed in East Timor, 6 August 2003
Commission for Reception, Truth and Reconciliation
The Commission for Reception, Truth
and Reconciliation (CAVR) final report is called Chega! (‘Enough!’ in Portuguese).
The 2500 page report was handed to the President on 31 October 2005, and
tabled in the East Timorese Parliament for consideration on 28 November
2005. The report was the result of five years of research by the CAVR.
President Xanana Gusmão handed the report to UN Secretary-General Kofi
Annan on 20 January 2006. Upon receipt, the Secretary-General referred
the report to the Security Council, General Assembly, the Special Committee
on Decolonization, and the UN Commission on Human Rights. The secretary
The report was initially leaked to media outlets
and termed a ‘grenade lobbed into a flammable international arena’. The
report allegedly details how the Indonesian military allegedly used napalm
and poisoned food supplies to kill off the resistance movement. As noted
in the introduction to this E-Brief, the report says up to 180 000 East
Timorese, or about a third of its pre-invasion population, died during
the occupation from 1975 to 1999.
The report also claims:
Rape, sexual slavery and sexual violence
were tools used as part of the campaign designed to inflict a deep experience
of terror, powerlessness and hopelessness upon pro-independence supporters.
The factual findings find acceptance by the
Timorese. Timor Leste's Ambassador to the UN, Jose Luis Guterres, stated
that the allegations are not surprising: ‘It's well known and it was,
during the time, it was already used by resistance leaders to explain
about the situation in East Timor and so it's nothing for the entire population,
is not new’.
Three key recommendations of the report however,
led to allegations that the Government did not allow the report to be
properly debated in Parliament. Firstly, the CAVR allegedly calls for
reparations from both Indonesia and the Government of Timor Leste for
victims of torture, rape and violence perpetrated by Indonesia from its
invasion in 1975 to its withdrawal in 1999.
When tabling the report, President Gusmão
told the Parliament that the Commissioners possessed ‘grandiose idealism’
and that the recommendation on reparations was ‘seriously concerning’
because it ‘does not take into account the situation of political anarchy
and social chaos that could easily erupt if we decided to bring to court
every crime committed since 1975’.
Secondly, the CAVR report is also calling
on countries that supported Indonesia's 1975 invasion to compensate the
victims. The Government of Timor has also rejected the CAVR recommendation
that Australia, Britain and the United States pay compensation for their
part in Indonesia's 24-year occupation of Timor Leste. Jose Ramos Horta,
Timor Leste's then foreign minister stated: ‘For me, and for my President,
and my government as a whole, it's out of the question that we would even
raise this issue with these countries–we will not. It would be undiplomatic,
it would not be fair, it would be showing a lack of gratitude, lack of
statesmanship, a lack of maturity.’
Thirdly, the report recommends
that:
The United Nations and its relevant organs,
in particular the Security Council, remains seized of the matter of
justice for crimes against humanity in Timor-Leste for as long as necessary,
and be prepared to institute an International Tribunal pursuant to Chapter
VII of the UN Charter should other measures be deemed to have failed
to deliver a sufficient measure of justice.”
The CAVR, itself, has tried to remain impartial
in relation to calls to release its report. The commission's president
Aniceto Guterres stated publicly: ‘I just would like to say that the report
was from everybody involved in the CAVR process. So the most important
thing is that the report returns to all East Timorese. But CAVR itself
is not insisting [on] it’.
On 28 November 2006, there was a launch event
held around the Chega! Report in Parliament House, the culmination of
events in most Australian capital cities, with a speech
by former CAVR Commissioner Isabel Guterres. A copy of the report was
tabled in the Senate by Australian Democrat Senator Natasha Stott-Despoja
on 29 November 2006.
The Post-CAVR Technical Secretariat
(Secretariado Tecnico Pos-CAVR/STP-CAVR) was inaugurated by President
Kay Rala Xanana Gusmao in consultation with the Government on 20 December
2005.
See further:
Chega! [electronic resource] : the report
of the Commission for Reception, Truth and Reconciliation in Timor-Leste
(CAVR), Commission for Reception, Truth and Reconciliation in East Timor,
2005. Library call numbers: R 323.095987 COM Executive summary, or R 323.095987
COM Report.
Damien Grenfell, ‘When
remembering isn’t enough’, Arena Magazine, No 80, 1 December
2005, pp. 32-35.
‘We
must close that part of history’ Tempo, 26(6), 6 March 2006,
pp. 40-43.
Sian Powell, ‘UN
verdict on East Timor’, The Australian, 19 January 2006.
Tom Iggulden, ‘East Timor plays down
damning UN report’, ABC Radio National AM, 19 January 2006.
International Center for Transitional Justice.
‘Timorese Parliament
Should Release Truth Commission Report Immediately’, media release,
New York, 28 November 2005.
Sonny Inbaraj ‘Human
Rights Day: East Timor Invasion Leaves Haunting Legacy’, Inter-Press
Service, Dili, 10 December 2005.
Sen Lam, ‘Timor: No compensation
wanted for occupation’, Radio Australia, 1 December 2005.
Jill Jolliffe, Jakarta's
Timor trials 'a sham' The Age, June 19, 2005.
Report of the Secretary-General on justice
and reconciliation for Timor-Leste, S/2006/580, 26 July 2006.
Commission of Experts Report
A Commission of Experts was appointed by Kofi
Annan in January 2005 to investigate why a 1999 Security Council resolution
calling for the trial of those accused of atrocities in Timor during its
independence referendum had not been implemented. The three experts,
Justice Prafullachandra Bhagwati of India, Professor Yozo Yokota of Japan
and Shaista Shameem of Fiji, visited Indonesia and Timor Leste in early
2005.
The UN Security Council, as mentioned in Resolution
1599 (2005), called on all parties (including Indonesia) to cooperate
fully with the work of the Commission of Experts. Despite this, in May
2005 Indonesia initially refused their visas. The Security Council, in
the same resolution, acknowledges the improvement of relations between
Indonesia and Timor Leste, including the agreement to establish the CTF.
The Council also slightly softened its position on the judicial process
regarding serious human rights violations in Timor Leste in 1999, by only
reaffirming the need for credible accountability, instead of reaffirming
the fight against impunity mentioned in the Resolution
1573 adopted in 2004.
The Experts’ 160-page
report to UN Secretary-General Kofi Annan which was debated in the
Security Council found that Indonesia should retry accused war criminals
acquitted by a special court in Jakarta because the process was a sham.
It says the trials were ‘manifestly inadequate’ with ‘scant respect for
relevant international standards’. Prosecutors were ‘not committed to
justice’, and the court had been hostile to defence witnesses but lenient
on the accused.
The report recommended that Indonesia be given
six months to prepare credible trials. If it does not comply, the experts
argued, the UN should invoke its charter to set up an international war
crimes court for Timor Leste.
The Security Council asked the Secretary-General
to make recommendations
on the Experts Report and the CAVR which he did on 26 July 2006. He recommended
the establishment of an experienced investigation team, led by an international
serious crimes investigator, with sufficient resources to resume the investigative
functions of the Serious Crimes Unit and complete investigations into
outstanding serious crimes cases of 1999 in a timely fashion. As a result,
among UNMIT’s other priorities are assisting the Office of the Prosecutor
General in resuming investigative functions of the former Serious Crimes
Unit in order to complete investigations into the serious human rights
violations of 1999.
See further:
Jill Jolliffe, Jakarta's
Timor trials 'a sham' The Age, June 19, 2005.
Saraswati, M. S. Commission
could be 'whitewash machine'. The Jakarta Post.
Jakarta, 2004.
Rowan Callick, ‘Timor
trials set to downplay role of Indonesian military’ Australian
Financial Review, 8 May 2002.
Report of the Secretary-General on justice
and reconciliation for Timor-Leste, S/2006/580, 26 July 2006.
Dili Riots 2006
Violence erupted in the Timorese capital Dili
in April and May between police, the military and youths. The United Nations
concluded that the violence resulted in at least 37 persons killed, more
than 150 injured and some 150 000 persons displaced, as well as arbitrary
arrests and detention by the armed forces. There was significant damage
to property, particularly looting and burning of houses in Dili.
As of mid-July 2006, 72 000 internally displaced
persons were receiving food aid in 62 makeshift camps scattered throughout
Dili, while up to 80 000 people had fled to the countryside where they
were sheltered by host families and in a very small number of camps.
In late June 2006, the UN High Commissioner
for Human Rights, on the request of the UN Secretary-General, established
a Special Independent
Commission of Inquiry for Timor-Leste which reported on 17 October
2006. The Commission found that ‘failures of the rule of law and accountability
were at the heart of the events in April and May.’
After the Dili riots in April/May 2006, the
United Nations Integrated Mission in
Timor-Leste (UNMIT) was established on 25 August 2006 by Security
Council Resolution 1704 with the priority of restoring public security.
At full strength it will include some 1608 UN Police (UNPol) as well as
34 military liaison and staff officers. UNPol will provide support to
the Timorese police force (PNTL) while it is being reconstituted, plus
provide interim law enforcement. It has a six-month mandate.
Following Prime Minister Alkatiri's resignation
on 26 June 2006, Dr Jose Ramos Horta became the new Prime Minister in
July 2006. Sporadic violence has continued in the capital Dili, which
the International Crisis
Group attributes to youth gangs and unresolved tensions between Fretilin
and other factions.
Presidential elections
were held on 9 April 2007 with a run-off between Ramos Horta and Fretilin
candidate Francisco ‘Lu-Olo’ Guterres held in May. Ramos Horta was elected
President. Parliamentary elections will be held on 30 June. Retiring
President Xanana Gusmão intends to join a new party, the National Congress
of Reconstruction of Timor, to contest the June poll.
See further:
Report of the Secretary-General on Timor-Leste
pursuant to Security Council resolution 1690 (2006), S/2006/628, 8 August
2006.
Report of the United Nations Independent Special
Commission of Inquiry for Timor-Leste, Geneva, 2 October 2006.
International Crisis Group, ‘Resolving Timor-Leste’s
Crisis’, Asia Report No. 120, 10 October 2006
Joint Truth and Friendship Commission
On 14 December 2004, Presidents Gusmão and
Yudhoyono declared their intention to create a Commission
of Truth and Friendship (JTFC).
On 9 March 2005, the two Presidents agreed
on the terms
of reference of the JTFC, and a memorandum of understanding was signed
on 11 August 2005 on its establishment. The JTFC is composed of ten Commissioners,
five from Indonesia and five from Timor-Leste, as well as six alternates,
three from Indonesia and three from Timor-Leste. It is led by two co-chairs,
from Indonesia and Timor-Leste, elected by the Commissioners. The Joint
Secretariat of the JTFC is located in Denpasar, Indonesia.
The commission can recommend amnesty for people
responsible for the atrocities that occured in East Timor in 1999 if they
‘cooperate fully in admitting the truth’. Furthermore, the JTFC’s terms
of reference clearly state that the outcomes of its findings ‘will not
lead to prosecution’. Thus in keeping with the JTFC’s foundational principles
of reconciliation and restorative justice, it will ‘emphasize institutional
responsibilities’ rather than identifying and assigning blame. The JTFC’s
mandate therefore involves constructing and recommending appropriate measures
to ‘heal the wounds of the past’ so as to ‘rehabilitate and restore human
dignity. While the JTFC is able to recommend rehabilitation for those
‘wrongly accused’, it has no power to propose rehabilitation or reparations
for victims.
A 12-month extension of the JTFC mandate beyond
1 August 2006 has been requested by the Commissioners and is being considered
by the two Governments.
On
30 November 2006, the JTFC announced it would invite parties such as General
Wiranto to answer questions in January 2007, and then announced it would
recommend amnesties for people who cooperated with the Commission. This
announcement was publicly denounced by Timor MPs Cipriana Pereira (Fretilin)
and Maria Paixão (PSD).
The April 2007 hearings schedule is on the
JTFC website.
Timor Leste's Ambassador to the United Nations,
Jose Luis Guterres outlined:
I don't believe that the Government of
East Timor will again try to prosecute any of the military figures in
Indonesia because of the past human rights violation in East Timor.
The reasons are, as you know, there is the Government has the present
determination to first, to consolidate the process of democracy, freedom
and justice in East Timor. Second, to maintain the good relations with
Indonesia. At the same time, also giving the opportunity to the Indonesian
system of democracy and freedom to be consolidated in that region.
See further:
David Cohen, Intended to Fail: The trials
before the Ad Hoc Human Rights Court in Jakarta. International
Center for Transitional Justice, 2003.
Editorial. ‘Indonesia's
Generals Take a Back Seat’. Sydney Morning
Herald, 23 August, 2004
Sarah Boyd ‘Timor justice slow but sure’,
Asia Intelligence Wire, 29 July 2004.
Tom Iggulden, ‘East Timor plays down
damning UN report’, ABC Radio National AM, 19 January 2006.
Sen Lam, ‘Timor:
No compensation wanted for occupation’, Radio Australia, 1
December 2005.
Sian Powell, ‘East
Timor forgoes justice for the rape of a nation’, The Australian,
1 August 2005.
AFP, ‘Timor truth commission to question Indonesian
generals over 1999 violence’, 20 November 2006, Jakarta.
M. Taufiqurrahman, ‘Amnesties OK for Timor
Leste rights violators, says body’, Jakarta Post, 17 January 2007,
Jakarta.
UNMIT Daily Briefing, ‘MPs Rejects CVA Recommendations’,
16 January 2007, Dili.
For copyright reasons some linked items are only available to
members of Parliament.
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