[Easttimorstudies] AUSGOV: Aftermath Timor Leste: reconciling competing notions of justice

Jennifer Drysdale jenster at cres10.anu.edu.au
Sun May 28 14:52:30 EST 2006

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>Aftermath Timor Leste: reconciling competing notions of justice
>Information and Research Services, Parliamentary Library
>Posted: 23-05-2006
>20 May 2006 marks the sixth anniversary of 
>Timorese independence. In this e-brief Susan 
>Harris-Rimmer and Effi Tomaras give a brief 
>summary of the transitional justice mechanisms 
>employed in the case of Timor and the results so far.
>Read the full text: http://www.aph.gov.au/library/INTGUIDE/LAW/TimorLeste.htm
><http://www.aph.gov.au/library/INTGUIDE/hotissues.htm>Current Issues
>Aftermath Timor Leste: reconciling competing notions of justice
>E-Brief: Online Only issued 22 May 2006
><mailto:sue.harrisrimmer at aph.gov.au>Susan Harris-Rimmer, Analysis and Policy
>Law and Bills Digest Section
><mailto:effi.tomaras at aph.gov.au>Effi Tomaras, Analysis and Policy
>Foreign Affairs, Defence and Trade Section
>In 1999, Mary Robinson, UN High Commissioner for 
>Human Rights said of the violence in 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 2006 will mark the sixth anniversary of Timorese independence.
>This e-brief gives a brief summary of the 
>transitional justice mechanisms employed in the 
>case of Timor and the results so far.
>See further:
>United Nations, 
>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
>Australians will remember that 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 East Timor was left in ruins. 
>However, there were serious violations against 
>human rights far before the 1999 vote, beginning 
>with Indonesia’s occupation of the island in December 1975.
>East Timor 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 East Timor 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 East Timor.
>An estimated 20 000 Indonesian troops were 
>deployed to the region by the end of 1975. While 
>casualty estimates vary, anywhere from 60 
>000­100 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 nation­Australia.
>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 (4­6 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 East Timor since 
>1975. Amnesty International estimates that 200 
>000 died from military action, starvation or 
>disease from 1975­1999. 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 <http://etan.org/news/2006/cavr.htm>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 of the long occupation to the 
>Indonesian military 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 East 
>Timor, 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 
>crisis, Indonesian President Habibie 
>unexpectedly announced that the East Timorese 
>would be allowed a referendum to decide between 
>greater autonomy within Indonesia or a 
>transition to independence.  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, 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 East Timor remaining as part 
>of Indonesia, and therefore independence would 
>be granted to the territory. The announcement of 
>the ballot result on 4 September 1999 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 
>1542(XV) 16 December 1960.
>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’, 
>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, 
>Timor: Indonesia's actions 'genocide' says 
>expert’, Asia-Pacific, 29 August 2001.
>Mark Forbes, 
>Rule 'Led to 100,000 East Timor Dead', Sydney Morning Herald, 20 December 2005.
>John McBeth, 
>Juggling Pragmatic Politics with Bloody Past’, 
>The Straits Times (Singapore), 19 December 2005.
>Associated Press, 
>of East Timor Cost 3,700 Indonesian Lives-Wiranto’, 20 September 1999.
>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
>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.
>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 
>East Timor, 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 
>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 
>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 East Timor 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 East Timor the UN set up the 
>Serious Crimes Investigation Unit 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 
>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 
>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 
>Centre for Transitional Justice released a 
>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 East Timor 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 
>East Timor. 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.  East Timor and Indonesia agreed 
>separately to hold a Joint Truth and Friendship 
>Commission which began in August 2005 with a one-year extendable mandate.
>The U.N. Mission of Support in East Timor 
>(UNMISET) was to withdraw from East Timor 
>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 
>1599 (2005) adopted by the Security Council on 
>28 April 2005, with effect from 21 May 
>2005.  The Security Council is currently 
>considering another extension of UNOTIL as of 20 May 2006.
>Special Panels of Serious Crimes Court, Dili
>The serious crimes process in East Timor was 
>important as it was the only ‘internationalised’ 
>process dealing with the violence in East Timor. 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.
>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 
><http://www.jsmp.minihub.org/>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 bears 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 SCIU 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. 
>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, 
>Atrocities at the District Court of Dili’, 
>Melbourne Journal of International Law, Vol. 2, 2001.
>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.
>Future of the Serious Crimes Unit, January 2004, Dili.
>David Cohen, 
>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 East Timor, 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. 46­63, 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 East Timor 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 
>to Fail: The trials before the Ad Hoc Human 
>Rights Court in Jakarta.  Ian Martin in his 
>preface to this excellent 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, 
>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.
>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
>for Reception, Truth and Reconciliation (CAVR) 
>final report is called 
>(‘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.  No official stance by these organs of 
>the UN has been taken on the report as of May 2006.
>The report has been 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 allegedly 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.  East Timor'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, 
>have led to allegations that the Government is 
>not allowing the report to be released. Firstly, 
>the CAVR allegedly calls for reparations from 
>both Indonesia and the Government of East Timor 
>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 East 
>Timor.  Jose Ramos Horta, East Timor's 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 countries­we 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 
><http://etan.org/etanpdf/2006/CAVR/11-Recommendations.pdf>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’.
>See further:
>Damien Grenfell, 
>remembering isn’t enough’, Arena Magazine, No 80, 1 December 2005, pp. 32-35.
>must close that part of history’ Tempo, 26(6), 6 March 2006, pp. 40-43.
>Sian Powell, 
>verdict on East Timor’, The Australian, 19 January 2006.
>Tom Iggulden, 
>Timor plays down damning UN report’, ABC Radio National AM, 19 January 2006.
>International Center for Transitional Justice. 
>Parliament Should Release Truth Commission 
>Report Immediately’, media release, New York, 28 November 2005.
>Sonny Inbaraj 
>Rights Day: East Timor Invasion Leaves Haunting 
>Service, Dili, 10 December 2005.
>Sen Lam, 
>No compensation wanted for occupation’, Radio Australia, 1 December 2005.
>Jill Jolliffe, 
>Timor trials 'a sham' The Age, June 19, 2005 Darwin.
>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 East Timor in early 2005.
>The UN Security Council, as mentioned in 
>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 East Timor in 1999, by only 
>reaffirming the need for credible 
>accountability, instead of reaffirming the fight 
>against impunity mentioned in the 
>1573 adopted in 2004.
>The Experts’ 
>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 East Timor.
>See further:
>Jill Jolliffe, 
>Timor trials 'a sham' The Age, June 19, 2005.
>Saraswati, M. S. 
>could be 'whitewash machine'. The Jakarta Post. Jakarta, 2004.
>Rowan Callick, 
>trials set to downplay role of Indonesian 
>military’ Australian Financial Review, 8 May 2002.
>Joint Truth and Friendship Commission
>In March 2005, possibly to pre-empt the 
>establishment of a UN international tribunal, 
>East Timor and Indonesia agreed to form a 
><http://www.ctf-ri-tl.org/>Commission of Truth 
>and Friendship. The commission can recommend 
>amnesty for those involved, but its findings 
>explicitly ‘will not lead to prosecution’. It 
>will ‘emphasize institutional responsibilities’ 
>rather than identifying and assigning blame. It 
>will be able to recommend rehabilitation for 
>those ‘wrongly accused’, but no power to propose 
>rehabilitation or reparations for victims.
>The Commission has received sustained criticism 
>from Timorese and Indonesian NGOs that it will 
>be a ‘whitewash machine’.  NGOs oppose the 
>giving of amnesties for perpetrators of serious 
>violations of international law.
>See further:
>David Cohen, 
>to Fail: The trials before the Ad Hoc Human 
>Rights Court in Jakarta.  International Center for Transitional Justice, 2003.
>Conclusion: the future of justice for East Timor
>There is no doubt that justice for the victims 
>of the crimes committed in East Timor still has 
>to be done. An analysis of the reasons for that 
>outcome is necessary, if a more effective 
>formula for justice in a post-conflict state is 
>to be found.  Taking a broad perspective of the 
>transitional justice mechanisms in East Timor 
>and Indonesia, it is clear that the Indonesian 
>government view that the conflict was a ‘civil 
>war between equally-matched Timorese factions, 
>with Indonesian security forces as bystanders’ could be written into history.
>As reporter Sian Powell stated:
>Justice for the thousands of East Timorese who 
>were murdered, raped, assaulted and forcibly 
>exiled in 1999 has been slowly but surely buried 
>in an avalanche of paperwork churned out by 
>tribunals, commissions, panels and committees.
>The general view of commentators and human 
>rights groups has been that the trials within 
>East Timor were well-intentioned, but massively 
>under-resourced, hamstrung by jurisdiction and 
>lack of access to indictees, and ended 
>pre-emptively.  The trials in Indonesia have 
>roundly been dismissed as a ‘sham’ and accused 
>of deliberate design by a politicised 
>Attorney-General’s office to avoid successful 
>prosecutions of military commanders.  The lack 
>of effectiveness of both processes can be traced 
>squarely to dwindling failure of political will 
>on behalf of the main actors­the Governments of 
>Timor, Indonesia and key Member States of the UN.
>The political will at the national level, both 
>in East Timor and in Indonesia, was not strong 
>enough to give such fledgling institutions the 
>impetus and standing that they needed to carry 
>out their mandate.  Both East Timor and 
>Indonesia were in a state of transition to a 
>democratic form of government­transitions that 
>carry with them huge implications for political 
>and economic stability and security.  The crimes 
>which are the subject of both jurisdictions 
>arise from the same acts; the perpetrators are 
>members of the Indonesian military and police 
>establishment, most of them officers in the 
>highest ranks of institutions that, in 
>Indonesia, are involved in the reform process 
>and having to adapt themselves to new roles as part of this reform.
>In Indonesia, this reform necessarily influenced 
>the political will in the executive and the 
>legislative sectors.  In East Timor, the 
>priority for dealing with these crimes was 
>shared with other, formidable priorities, and 
>the Memorandum of Understanding with Indonesia 
>must have further diluted the priority that the 
>investigation and prosecution of these crimes 
>called for.  In other words, the political will 
>at the national level in both States was not up 
>to the level required to see the machinery of justice put into effect.
>At the international level, the political will, 
>despite the expressions of outrage and 
>condemnation, and cogent reports from the UN 
>Commission on Human Rights, simply was not of a 
>sufficient level to bring about the kind of 
>consensus that led to the establishment of the 
>Yugoslav and Rwandan tribunals.  The procedure 
>for convening the extra-ordinary session of the 
>Commission on Human Rights in September 1999, 
>and the complications surrounding that session, 
>provided clear evidence of the absence of 
>international consensus to handle the crimes through international action.
>Whether justice will be done for East Timor in 
>the future is unclear. The Special 
>Representative of the Secretary-General in East 
>Timor, Dr Hasegawa, stated that with many 
>competing opinions and interests for Timor, one 
>option would be ‘call it a partial victory and 
>close the curtain’ when the UN mission finally 
>departs in May 2006. He thought the only other 
>option was a full international tribunal costing 
>much more than has been invested in the process so far.
>The Timorese Government has placed its faith in 
>the bilateral <http://www.ctf-ri-tl.org/>Truth 
>and Friendship Commission established in Bali 
>with the Indonesian Government. East Timor'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 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.
>The Government will still be under pressure from 
>the CAVR report and its own citizens to pursue 
>justice. Foreign Minister Jose Ramos-Horta has 
>responded to an alleged recommendation of the 
>CAVR report to pursue indictments of Indonesian 
>military in the following manner:
>Well, these are very high-sounding statements, 
>but the United Nations were here, from 1999 to 
>2003, with the massive peacekeeping force. They 
>didn't do that. So why should the East Timorese, 
>with our own priorities and concerns, to 
>continue to consolidate peace, reconciliation, 
>creating jobs for our people, reducing poverty 
>--should pretend to be a sort of Don Quixote de 
>la Mancha of justice, in fighting the mighty Indonesian army?
>See further:
>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, 
>Timor plays down damning UN report’, ABC Radio National AM, 19 January 2006.
>Sen Lam, 
>No compensation wanted for occupation’, Radio Australia, 1 December 2005.
>Sian Powell, 
>Timor forgoes justice for the rape of a nation’, The Australian, 1 August 2005.
>For copyright reasons some linked items are only 
>available to members of Parliament.
>ETAN welcomes your financial support. For more 
>info: http://etan.org/etan/donate.htm
>John M. Miller         Internet: fbp at igc.org
>National Coordinator
>East Timor & Indonesia Action Network:
>48 Duffield St., Brooklyn, NY 11201 USA
>Phone: (718)596-7668      Fax: (718)222-4097
>Mobile phone: (917)690-4391
>Web site: http://www.etan.org
>Send a blank e-mail message to info at etan.org to find out
>how to learn more about East Timor on the Internet
>[This message was distributed via the east-timor 
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Please consider the environment before printing this email
Jenny Drysdale
PhD Student/Environment Officer
Centre for Resource and Environmental Studies
Australian National University (ANU)
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