[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
>
>
>
>Introduction
>
>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,
>‘<http://www.unhchr.ch/huricane/huricane.nsf/0/40010B24953D1EBB802567EF0053BFFF?opendocument>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
>
>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
><http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/1542%28XV%29&Lang=E&Area=RESOLUTION>Resolution
>1542(XV) 16 December 1960.
>
><http://www.icj-cij.org/icjwww/icases/ipa/ipa_ijudgments/ipa_ijudgment_19950630.pdf>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’,
><http://www.gwu.edu/%7Ensarchiv/NSAEBB/NSAEBB62/>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,
>‘<http://abc.net.au/ra/asiapac/programs/s354635.htm>East
>Timor: Indonesia's actions 'genocide' says
>expert’, Asia-Pacific, 29 August 2001.
>
>Mark Forbes,
>‘<http://www.jsmp.minihub.org/News/2006/January/070105_AP_panel%20Up%20to_eng.htm>Indonesian
>Rule 'Led to 100,000 East Timor Dead', Sydney Morning Herald, 20 December 2005.
>
>John McBeth,
>‘<http://www.etan.org/et2005/december/17/19xclusv.htm>Commentary:
>Juggling Pragmatic Politics with Bloody Past’,
>The Straits Times (Singapore), 19 December 2005.
>
>Associated Press,
>‘<http://www.etan.org/et99b/september/19-25/20wirant.htm>Occupation
>of East Timor Cost 3,700 Indonesian Lives-Wiranto’, 20 September 1999.
>
><http://www.usip.org/library/pa/et/east_timor_05051999ques.html>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
>
><http://www.un.int/usa/sres1264.htm>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
><http://www.un.int/usa/sres1272.htm>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
>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
><http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/A.54.726,+S.2000.59.En>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
><http://www.asia-pacific-action.org/southeastasia/easttimor/reports/komnasham_1999hamviolations_310100.htm>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 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
><http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf>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
><http://www.un.org/peace/etimor/untaetR/Reg10e.pdf>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
><http://www.ictj.org/en/index.html>International
>Centre for Transitional Justice released a
><http://www.ictj.org/en/news/features/846.html>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 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
><http://www.securitycouncilreport.org/atf/cf/%7b65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7d/TL%20SRES1599.pdf>Resolution
>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.
>
>The
><http://www.etan.org/news/2005/06exec.htm#SCU>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
><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.
>‘<http://home.snafu.de/watchin/notes02.11.04.htm>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,
>‘<http://www.ichr-law.org/english/documents/articles/05_Linton.pdf>Prosecuting
>Atrocities at the District Court of Dili’,
>Melbourne Journal of International Law, Vol. 2, 2001.
>
><http://www.securitycouncilreport.org/atf/cf/%7b65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7d/TL%20S2005458.pdf>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,
><http://www.jsmp.minihub.org/Reports/Other%20Reports/Melbourne%20Symposium/Tiago%20Speech/THE%20FUTURE%20OF%20SERIOUS%20CRIMES%5b1%5d,by%20Tiago%20Sarmento.pdf>The
>Future of the Serious Crimes Unit, January 2004, Dili.
>
>David Cohen,
>‘<http://www.eastwestcenter.org/stored/pdfs/api061.pdf>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 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
><http://www.ictj.org/images/content/0/9/098.pdf>Intended
>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,
><http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/4a721cf7f1dbe070c1256cee003afaf9?Opendocument>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.
>
><http://europa-eu-un.org/articles/en/article_2631_en.htm>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
><http://www.easttimor-reconciliation.org/>Commission
>for Reception, Truth and Reconciliation (CAVR)
>final report is called
><http://etan.org/news/2006/cavr.htm>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. 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,
>‘<http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=JRNART&Criteria=CITATION_ID:4RFI6;>When
>remembering isn’t enough’, Arena Magazine, No 80, 1 December 2005, pp. 32-35.
>
>‘<http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=JRNART&Criteria=CITATION_ID:W3ZI6;>We
>must close that part of history’ Tempo, 26(6), 6 March 2006, pp. 40-43.
>
>Sian Powell,
>‘<http://www.globalpolicy.org/intljustice/tribunals/timor/2006/0119verdict.htm>UN
>verdict on East Timor’, The Australian, 19 January 2006.
>
>Tom Iggulden,
>‘<http://www.abc.net.au/am/content/2006/s1551058.htm>East
>Timor plays down damning UN report’, ABC Radio National AM, 19 January 2006.
>
>International Center for Transitional Justice.
>‘<http://www.ictj.org/en/news/press/release/250.html>Timorese
>Parliament Should Release Truth Commission
>Report Immediately’, media release, New York, 28 November 2005.
>
>Sonny Inbaraj
>‘<http://www.ipsnews.net/africa/interna.asp?idnews=31369>Human
>Rights Day: East Timor Invasion Leaves Haunting
>Legacy’,
><http://www.ipsnews.net/africa/interna.asp?idnews=31369>Inter-Press
>Service, Dili, 10 December 2005.
>
>Sen Lam,
>‘<http://www.abc.net.au/ra/asiapac/programs/s1520317.htm>Timor:
>No compensation wanted for occupation’, Radio Australia, 1 December 2005.
>
>Jill Jolliffe,
><http://www.jsmp.minihub.org/News/2005/June/19june05_TA_Jakarta%27s_eng.htm>Jakarta's
>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
><http://daccessdds.un.org/doc/UNDOC/GEN/N05/326/31/PDF/N0532631.pdf?OpenElement>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 East Timor in 1999, by only
>reaffirming the need for credible
>accountability, instead of reaffirming the fight
>against impunity mentioned in the
><http://daccessdds.un.org/doc/UNDOC/GEN/N04/609/29/PDF/N0460929.pdf?OpenElement>Resolution
>1573 adopted in 2004.
>
>The Experts’
><http://www.securitycouncilreport.org/atf/cf/%7b65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7d/TL%20S2005458.pdf>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 East Timor.
>
>See further:
>
>Jill Jolliffe,
><http://www.jsmp.minihub.org/News/2005/June/19june05_TA_Jakarta%27s_eng.htm>Jakarta's
>Timor trials 'a sham' The Age, June 19, 2005.
>
>Saraswati, M. S.
><http://www.etan.org/et2004/september/08-14/09icomm.htm>Commission
>could be 'whitewash machine'. The Jakarta Post. Jakarta, 2004.
>
>Rowan Callick,
>‘<http://www.etan.org/et2002b/may/05-11/08ttrial.htm>Timor
>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,
><http://www.ictj.org/images/content/0/9/098.pdf>Intended
>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:
>
>Editorial.
>‘<http://www.smh.com.au/articles/2004/08/22/1093113058733.html?from=storylhs>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,
>‘<http://www.abc.net.au/am/content/2006/s1551058.htm>East
>Timor plays down damning UN report’, ABC Radio National AM, 19 January 2006.
>
>Sen Lam,
>‘<http://www.abc.net.au/ra/asiapac/programs/s1520317.htm>Timor:
>No compensation wanted for occupation’, Radio Australia, 1 December 2005.
>
>Sian Powell,
>‘<http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=pressclp&Criteria=CITATION_ID:SOTG6;>East
>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.
>
>
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>
>ETAN welcomes your financial support. For more
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>
>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
>
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>
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>
>
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