[TimorLesteStudies] Abstract and TOC: Sue Harris Rimmer SJD thesis: Transitional Justice and the Women of East Timor

Susan Harris harriss at law.anu.edu.au
Mon Sep 22 16:40:27 EST 2008

Hi all

Just email if you want any bits or the whole... The background chapter is attached b/c might be useful to more folk.



This dissertation examines the impact of international law on East Timorese women engaged with transitional justice processes.  I provide a feminist examination of the role of international law within the overall framework of transitional justice interventions designed for the violations of human rights in East Timor, focusing on the UN trials in Dili, the Jakarta trials and the truth commissions. 

Most feminist research has been done on the project of categorising gender-based violence as international crimes, and the prosecution of such crimes. My analysis shows there are still gaps and silences with international law’s engagement with gender issues in Timor.  The question is whether feminist analysis needs to refocus on the obligation to prosecute that is imposed by international law.  In other words, do feminists need to re-engage with some of the Realpolitik criticisms of law in post-conflict settings, particularly in light of insights gained by feminist international relations scholars?  This study takes a holistic view of all the formal mechanisms employed in Timor.  It explores the fissures between the claims made for the role of international law in transitional justice processes, and what law can actually achieve.

Timorese women in the independence period face the problem of ‘changing the curtains’, in the sense that they may still be facing private violence in peacetime as they faced violence during the conflict.  Trials may need to be delayed until they can be of an appropriate standard to uphold the rule of law.  I ask whether, even if perfect trials and truth commissions were held which achieved all the traditional goals of transitional justice mechanisms, there may be limitations on what law, especially international law, can achieve to benefit women.  I therefore propose that feminist international law scholars need to consider alternative, creative ways of addressing the situation of women. In particular there is a need to move beyond ideas of women as victims or even survivors, by redefining what it is to be a ‘veteran’, as veterans receive both maintenance and status in the new State.

Table of Contents

Acknowledgments ……….	iii

Dedication……….	v

Abstract………………	vi

Map of East Timor	xii

Glossary of Terms	xiii

Quotation (Ivo Andr*c)	xvi

Introduction	A luta continua! (The fight continues!)	1

	Part 1	Argument	3
	1.1	Thesis parameters—what the thesis does not do	8
	Part 2	Feminist critiques of transitional justice mechanisms in East 
			Timor: current literature	10
	2.1	Current transitional justice debates	11
	2.2	Legal scholarship	14
	2.3	Gender and transitional justice scholarship	22
	2.4	Feminist counter-narratives	27
	Part 3	Chapter outline	29
	Conclusion		35

Chapter One	Cecelia Soares recalls—East Timor as case study	38

	Part 1	History of the conflict	39
	1.1	Situation of women 1975 – 1999	43
	1.2	Post-conflict Timor	49
	1.3	Women in post-conflict Timor	54
	Part 2	Overview of transitional justice mechanisms	55
	2.1	Judicial mechanisms relating to East Timor	56
	2.1.2	The serious crimes process	56
	2.1.3	The Jakarta trials	60
	2.1.4	Lustration and Alien Torts Claims	61
	2.2	Non-judicial mechanisms—truth commissions	65
	2.2.1	The CAVR (Timor truth commission)	65
	2.2.2	The KKR (Indonesian truth commission)	68
	2.2.3	Joint Truth and Friendship Commission	69
	2.2.4	UN efforts: the Commission of Experts	71

Chapter Two	Sexing the subject of transitional justice	73

	Part 1	Legalist versus realist arguments over the role of international law in transitional justice processes	76
	1.1	The legalist approach: the obligation to punish	79
	1.2	The realist challenge	83
	1.3	New interdisciplinary approaches to transitional justice	87
	Part 2	Feminist critiques of the role of international law in transitional justice processes	89
	2.1	Representation of women in transitional justice processes	95
	2.2	Categorisation of crimes: exceptionalism or revolution? 	100
	2.3	Prosecution strategies and problems: wholesale justice	104
	2.4	Feminist strategic legalism	109
	Part 3	Possibilities for reinvention: women as veterans	116
	3.1	Women become veterans	120
	Conclusion		124

Chapter Three	Wearing his jacket: the serious crimes process	128
	Part 1	Foundations of the serious crimes process: beginning at sub-zero	133
	1.1	The Special Panels for Serious Crimes	136
	1.2	The Serious Crimes Investigation Unit	143
	1.2.1	Prosecution strategy	144
	1.3	The Public Defender’s Office	147
	1.4	The Court of Appeal	148
	1.5	Overall budget 	150
	Part 2	Gender analysis of the serious crimes process	151
	2.1	Representation of women	151
	2.2	Jurisprudence on gender persecution from the serious crimes process	153
	2.2.1	The Leonardus Kasa case: a step backwards	154
	2.2.2	The Lolotae trials: rape as a crime against humanity	165
	2.2.3	The Soares case: rape as ‘ordinary’ crime	175
	2.2.4	Other indictments involving gender persecution	176
	Part 3	The ‘not so serious’ crimes process	182
	3.1	Outcomes of the serious crimes process	182
	3.2	Jurisprudence on gender persecution from the serious crimes process	184
	3.3	Indonesia’s refusal to cooperate	190
	3.4	Inequity of outcome with Indonesian perpetrators	192
	3.5		Contribution of serious crimes process to the rule of law in East Timor 	194
	Conclusion			197

Chapter Four		Beloved madam: the Indonesian ad hoc Human Rights Court	203

	Part 1	Foundations: the obligation to punish	207
	Part 2	The role and operation of the court	212
	2.1	Investigations	212
	2.2	Legislative framework	218
	2.3	The Defence	223
	2.4	The Prosecution	224
	2.5	The Judges	229
	2.6	Outcomes of the trials 	233
	2.7	Reactions to the acquittals 	237
	Part 3	Gender analysis of the trials	242
	3.1	The obligation to punish: flaws in the legislative foundations	243
	3.2	Gendered discourse in the Jakarta trials	244
	3.3	Treatment of female witnesses	246
	Conclusion		252

Chapter Five	Women cut in half: the Commission for Reception, Truth-Seeking and Reconciliation and the limits of restorative
			justice	259

	Part 1	Beatriz Guterres speaks: women and the CAVR	259
	1.1	Gender issues in the Chega! Report	264
	1.2	Representation of women in CAVR processes	267
	1.3	Gender and reparations at the CAVR	271
	1.4	Women and the Community Reconciliation Process	274
	Part 2	Negative aspects of the CAVR process for women	276
	2.1	The ‘reception’ function of the CAVR	277
	2.2	Political distance from the Timorese Government	283
	2.3	Failure of the serious crimes process	285
	Part 3	Forced maternity in East Timor: a failure of categorisation	286
	3.1	Evidence of forced maternity and birth control	288
	3.2	Impact of forced maternity	292
	3.3	Uncertain recognition of forced maternity as a crime under international law	298
	Part 4		Chega! and domestic violence against women in post-	independence
				East Timor	303
	4.1	Evidence of domestic violence	305
	4.2	Legal principles and resources	308
 	4.3	Closing the curtains on domestic violence	311
	4.4	Dr Lobo – the public man with the private crime	314
	Conclusion: from traitors to heroes	320

Conclusion	‘Operation Love’	325
	Part 1	The future of justice for East Timor	329
	Part 2	Women become veterans	334
	Part 3	Summary of findings	338
	Conclusion	Opening the curtains	343

Appendices		346

Bibliography		378

Susan Harris Rimmer
Building Democracy and Justice After Conflict
Centre for International Governance and Justice
Regulatory Institutions Network 
College of Asia and the Pacific, RSPAS 
The Australian National University 
Canberra ACT 0200 
Email: harriss at law.anu.edu.au
Phone: +61 2 612 56768
Fax: +61 2 612 51507 
M: 0406 376 809
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