[This is a slightly revised and updated version of a paper presented at the
above seminar] Centre of South East Asian Studies & Centre for Law and Conflict, SOAS,
University of London, Seminar, 16 March 2004

East Timor In Prospect And Retrospect: Securing Accountability For Serious Crimes, 1975-1999

By Paul Barber, TAPOL, the Indonesia Human Rights Campaign

This paper provides a brief summary of the progress, or lack of it, made towards securing accountability for serious crimes [1] committed in East Timor since the time of the Indonesian invasion in 1975, and a consideration of the ways in which justice might ultimately be achieved for the East Timorese people, who have suffered from some of the most appalling crimes and injustices known to humanity.

While much attention has understandably been paid recently to the crimes perpetrated immediately before, during and after East Timor's vote for independence in August 1999, we must not lose sight of the terrible fact that up to a third of the population - around 200,000 people - lost their lives as a result of the 1975 invasion and the subsequent Indonesian military occupation of the country. In terms of the proportion of the population affected, this remains one of the most heinous crimes of the 20th century. But to date, the international community has failed in its special responsibility to investigate and prosecute those responsible.

The international community has made some attempt to secure justice for the crimes committed in 1999, but the outcomes have been at best disappointing and at worst travesties of justice which have simply served to strengthen the impunity enjoyed by those who orchestrated the violence while punishing the uneducated low-level militias who helped to carry out the Indonesian army's dirty work.

When it reported in January 2000, the International Commission of Inquiry on East Timor (ICIET) set up by the UN Secretary-General on the advice of the UN Commission on Human Rights cited evidence of 'a pattern of serious violations of fundamental human rights' in relation to the 1999 crimes and expressed the view that 'ultimately the Indonesian Army was responsible for the intimidation, terror, killings and other acts of violence'. It is now reliably estimated that over 1,400 people were killed [2]. In addition, up to 75 per cent of the population was displaced, including around 250,000 evacuated to Indonesian West Timor, and much of the infrastructure was destroyed.

The International Commission recommended the establishment of an international human rights tribunal consisting of judges appointed by the UN, preferably with the participation of members from East Timor and Indonesia. It suggested it should sit in Indonesia, East Timor and any other relevant territory to receive the complaints and to try those accused.of serious violations of fundamental human rights and international humanitarian law which took place in East Timor since January 1999.'

At the same time, Indonesia's own Commission for Human Rights Violations in East Tmior (KPP-HAM) produced a commendably severe report, which publicly named as suspects 32 military and civilian personnel. It also stated that overall responsibility for the violence lay with armed forces commander-in-chief, General Wiranto [3].

The UN Secretary-General and the Security Council did not immediately follow the International Commission's recommendation to set up an international tribunal, but controversially opted instead to give Indonesia the chance to bring the alleged perpetrators to justice under its own legal system. An international tribunal, however, remained an option in the event of the failure of the Indonesian process.

After much delay, the necessary legislation was passed and an ad hoc human rights court was set up in Jakarta to try 18 defendants on crimes against humanity charges. However, the ensuing proceedings, which began in March 2002, were widely regarded as deeply flawed. They resulted in six convictions and 12 acquitals. All of those convicted, apart from one, were sentenced to terms of imprisonment below the legal minimum. All are free pending completion of their appeals. Just recently, the Indonesian Supreme Court upheld the acquitals of five officials implicated in the one of the worst massacres, at the Suai Church compound in September 1999. The extensive failings of the Jakarta trials are well documented elsewhere and it is clear they failed at many levels from political will to institutional
integrity to technical competence [4].

As well as being an affront to the East Timorese victims, their families and the East Timorese people in general, the outcome of the Indonesian process was a major setback to efforts to end impunity and improve respect for human rights and the rule of law in Indonesia. Already several of those implicated in the East Timor violence and indicted on serious crimes charges in East Timor have resumed influential positions, thus demonstrating Indonesia's unwillingness to ensure that human rights crimes are not repeated. They include General Wiranto, a possible presidential candidate in this year's Indonesian elections, Major General Adam Damiri, who has been involved in planning the current martial law offensive in Aceh [5], Brigadier General Timbul Silaen, now serving as police chief in West
Papua, and Eurico Guterres, the notorious militia leader recently linked to militia activities in West Papua.

Meanwhile in East Timor itself, a UN-backed process has attempted to meet widespread demands for justice. It comprises two main elements: the Serious Crimes Unit, which was set up by the UN Transitional Authority in East Timor (UNTAET) in June 2000 to investigate and prosecute serious crimes cases, and the Special Panels for Serious Crimes, the tribunal responsible for trying those accused of serious crimes. A Court of Appeal was also established. The Special Panels, which comprise East Timorese and international judges, have jurisdiction over genocide, crimes against humanity and war crimes wherever and whenever they occurred, and over murder, sexual offences and torture that occurred in East Timor between 1 January and 25 October 1999. Since East Timor's independence on 20 May 2002, the SCU has operated under the authority of East Timor's Prosecutor-General, but it continues to be funded and staffed by the UN.

At the end of 2003, the SCU had filed 81 indictments against 369 individuals [6]. The majority of the indictments included crimes against
humanity charges. The indictments had resulted in 46 convictions - mainly of lower-level East Timorese militia members [7] - two acquitals and one indictment dismissals. However, 281 out of the 369 indictees are Indonesian military officers or others who remain at large in Indonesia [8]. These accused are currently beyond the reach of the court as Indonesia has refused to co-operate and facilitate the transfer of suspects to East Timor.

Apart from this lack of co-operation by Indonesia, the serious crimes process has been dogged by numerous problems arising from its lack of resources and personnel and the fact that East Timor's new justice system had to be built from scratch. There are now major concerns about the future of the SCU, especially after the end of the current UN mission, UNMISET, in May 2004. Downsizing has been taking place since August 2003, and although the indications are that the SCU will continue with UN support for a limited period after May 2004, the likelihood is that its resources will be further diminished and it will be unable to complete its work in relation to the 1999 crimes, let alone those committed in the earlier period. The post-May 2004 work is likely to involve the completion of trials with less emphasis on investigation and up to 50 per cent. of the 1999 killings could remain uninvestigated [9].

On that point, it should be noted that whereas it is clear that the Special Panels have jurisdiction over pre-1999 serious crimes (and therefore the SCU has the authority to investigate them), it is unclear whether the SCU is required to carry out investigations and prosecutions under its current mandate [10].

Unfortunately, the East Timorese Government's support for the process has been lukewarm, but it has understandable concerns about its relations with Indonesia, particularly in relation to the insecure border area with West Timor, and cannot on its own be expected to be responsible for justice when the primary responsibility should lie with the international community.

The question, therefore, is where do we go from here? The East Timorese public's desire for truth, accountability and justice in relation to the whole period of the Indonesian occupation is as strong as ever. This is evident from community consultations conducted by NGOs, such as the International Center for Transitional Justice [11] and the locally-based Judicial System Monitoring Programme as well as public hearings of the Commission on Reception, Truth and Reconciliation (known by its Portuguese acronym, CAVR). There are plans for a coalition of local NGOs, churches, students and victims groups, known as East Timor National Alliance for an International Tribunal, to issue a public indictment on the notorious 1991 Santa Cruz massacre in order to highlight the extent and gravity of earlier violence. The Alliance, as its name suggests, is committed to the campaign for an international tribunal.

The CAVR itself is a vital part of the transitional justice process, and its mandate extends from April 1974 to October 1999, but it is not able to dispense formal justice for serious crimes.

In terms of the way forward, two points need to be made. Both are obvious, but need to be stressed.

Firstly, we must recognise that there is no easy or perfect answer to this problem of justice for East Timor. Indeed, there is not necessarily just one answer. There continues to be strong support within East Timorese civil society and amongst the victims for an international criminal tribunal and this remains by far the best option, probably in the form envisaged by ICIET, with the involvement of international, Indonesian and East Timorese judges sitting in a third country in the region. However, there are also other options which should be pursued, including a strengthened serious crimes process and prosecutions under universal jurisdiction provisions in other countries.

Secondly the problems we are facing here are not primarily legal, technical or financial, but political. The simple fact is that without the necessary political will, it will be extremely difficult to achieve a satisfactory outcome to this process. However, if the necessary political will can be generated at all levels, especially at the international level, it should be possible eventually to overcome many, it not all, of the other obstacles.

As things stand, the most likely next development, which is currently being considered by the UN, is for the Secretary-General to set up an independent commission of experts to review the processes in Indonesia and East Timor, to look at the problems they have encountered and the ways they can be overcome, and to make recommendation as to the future options for justice. It is clear that its terms of reference should not be time limited and should be wide enough to enable the commission to consider all possible options, including the establishment of an international tribunal.

In the meantime, we are calling upon all states, individually and through the UN, to take certain additional steps:

a) To provide the political, financial, and human resource support necessary for the SCU to complete the investigation and prosecution of all serious crimes, including those committed before 1999. This support should continue as long as required beyond the expiration of the UNMISET mandate in May 2004;

b) To press Indonesia to co-operate fully with the serious crimes process, especially in relation to the transfer of suspects to East Timor;

c) To act on arrest warrants for suspects issued to Interpol and to ensure that they have in place the necessary extradition agreements with East Timor to enable them to transfer suspects to East Timor;

d) Where appropriate, to prosecute individual suspects in accordance with their powers to exercise universal jurisdiction over crimes against humanity and other serious crimes under international law.

Paul Barber

Notes:

1. Serious crimes in this context refers to serious breaches of international human rights and humanitarian law, especially crimes against
humanity, murder, sexual offences and torture.

2. A brief dated 19 March 2004 prepared by East Timor's Serious Crimes Unit in the case of the Deputy General Prosecutor v. Wiranto & others breaks down the number of killings by each of East Timor's 13 districts. The total for all the districts is 1415.

3. For details of Wiranto's involvement, see the brief referred to at ibid. submitted to East Timor's Special Panel for Serious Crimes in support of an application for an arrest warrant for Wiranto.

4. See in particular 'Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta', International Center for Transitional Justice, August 2003, and 'Justice for Timor Leste: The way forward', report by Amnesty International/Judicial System Monitoring Programme, 13 April 2004.

5. See also 'Aceh Under Martial Law: Can These Men Be Trusted to Prosecute This War?', Human Rights Watch briefing paper, October 2003.

6. See 'The Future of the Serious Crimes Unit', Judicial System Monitoring Programme, January 2004, p. 3.

7. But also of three East Timorese members of the Indonesian military.

8. See 'The Future of the Serious Crimes Unit', above note 6 at p. 10.

9. See Ibid. at page 7.

10. See Ibid at p. 4.

11. See 'Crying Without Tears - In Pursuit of Justice and Reconciliation in Timor-Leste: Community Perspectives and Expectations', International Center for Transitional Justice.

-End-