Yet more Obstacles in the way of Justice for East Timor

12 April 2005 - It is becoming increasingly clear that the victims of crimes against humanity in East Timor are in danger of being denied meaningful justice by Indonesian intransigence and the limited scope of a
commission of experts established by UN Secretary-General Kofi Annan says TAPOL, the Indonesia Human Rights Campaign.

The work of the commission of three experts ('CoE'), appointed in February to review judicial processes in Indonesia and East Timor, is being severely undermined by Indonesia's refusal, confirmed yesterday, to grant entry visas to the experts and the Commission's own excessively short timeframe.

Indonesia has already demonstrated its determination to limit the effectiveness of the CoE by setting up a parallel Commission of Truth and Friendship ('CTF') with the government of East Timor.

TAPOL is particularly dismayed that Indonesia's obstructiveness comes at a time when it is chairing the UN Commission on Human Rights - currently in session in Geneva - the highest international body concerned with the promotion and protection of human rights. TAPOL regrets that Indonesia is not using this opportunity to demonstrate a commitment to holding the perpetrators of gross human rights violations accountable for their crimes.

The CoE's work is also limited by its own mandate, which apparently restricts it to crimes committed in 1999 and does not allow it to consider gross and systematic violations committed during the entirety of Indonesia's occupation of East Timor from 1975 to 1999.

The CoE is formally tasked with assessing the proceedings of Jakarta's ad hoc human rights court and the serious crimes process involving the Serious Crimes Unit and the Special Panels for Serious Crimes in Dili. The CoE is required by Kofi Annan to recommend further measures so that the perpetrators are held accountable, justice is secured for the victims and the people of East Timor, and reconciliation is promoted.

The members of the CoE are Justice Prafullachandra Bhagwati, a former chief justice of India, Professor Yozo Yokota of Japan, a former UN special rapporteur on Burma, and Ms Shaista Shameem, director of the Fiji human rights commission.

Last week, the members of the CoE spent a derisory four days in East Timor. They have indicated that they intend to complete their work by the end of April so their conclusions will be available to the UN Security Council when it considers future UN support for East Timor and the serious crimes process after the current UNMISET mandates expire on 20 May.

TAPOL believes that this deadline for the CoE's work is unnecessary and is completely inadequate if it is to complete "a thorough asseessment" of the progress made by the Indonesian and East Timorese judicial processes.

The abject failure of the Jakarta trials and the obstacles encountered by the serious crimes process in East Timor have been well documented and analysed by legal experts and observers. There is strong support among victims' groups and human rights organisations, including TAPOL, for the establishment of an international tribunal for East Timor as recommended by an earlier UN Commission of Inquiry, which reported in January 2000. However, the CoE is an independent body which must make its own assessment of the processes by considering all relevant documents and conducting extensive interviews with the legal professionals involved, official trial observers, victims groups, human rights organisations and other interested
parties.

The CoE must also take time to consider and recommend "legally sound and practically feasible measures and/or mechanisms" to secure justice for the victims and the people of East Timor.

This work of the CoE cannot be completed in a few days (and certainly cannot be undertaken without access to Indonesia), especially if the CoE wishes to avoid being accused of rubber-stamping a foregone conclusion for the sake of political expediency. Similar commissions in Cambodia and Burundi have spent six and twelve months respectively on their work.

The CoE is right to be concerned about the future of East Timor's Serious Crimes Unit and Special Panels for Serious Crimes after 20 May, but there is no reason why it cannot issue an interim recommendation on this process ahead of its final report.

It is of the essence of crimes against humanity that they are part of a widespread and systematic attack against a civilian population. The pattern of attacks on the civilian population of East Timor started in 1975
when Indonesia invaded the country and was responsible for the deaths of up to a third of the population - around 200,000 people. In terms of the proportion of the population affected, this remains one of the worst crimes of the 20th century. It is therefore legally necessary and morally imperative that the pre-1999 crimes are also investigated so that the true nature and extent of the attack on the civilian population are established
and those responsible are held accountable.

The parallel CTF set up by Indonesia and East Timor has been opposed by victims' families and civil society groups in East Timor for perpetuating impunity. Its apparent aim is to bury the past ('bring to a closure a
chapter of our recent past') and undermine the search for justice.

The CTF's mandate - which also relates only to 1999 - prevents it from recommending prosecutions. It is extremely unlikely that its outcome will bear any relation to the truth about the Indonesian army's orchestrated
destruction of East Timor.

TAPOL calls upon the UN and its member states to address the issues raised in this statement as a matter of urgency; to impress upon Indonesia the consequences of its continued lack of co-operation; and to ensure that
those responsible for egregious crimes against the people of East Timor and the international community are brought to justice as expeditiously as possible.

Background

In response to the violence and devastation inflicted on East Timor in 1999, the UN Secretary-General on the advice of the UN Commission on Human Rights set up an International Commission of Inquiry on East Timor (ICIET). When it reported in January 2000, ICIET 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. 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.

ICIET 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 the
tribunal 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 .'

At the same time, Indonesia's own Commission for Human Rights Violations in East Timor (KPP-HAM) produced a report which publicly named as suspects 32 military and civilian personnel. It stated that overall responsibility for the violence lay with the then armed forces commander-in-chief, General Wiranto, who later became a candidate in last year's Indonesian presidential elections.

The UN Secretary-General and the Security Council did not immediately follow the ICIET's recommendation to set up an international tribunal, but 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, 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 a travesty. They resulted in six convictions and 12 acquitals. Five of those found guilty later had their convictions quashed on appeal, leaving just one conviction still standing that of ethnic East Timorese militia leader, Eurico Guterres.

In East Timor itself, a UN-backed process was established comprising two main elements: the Serious Crimes Unit (SCU), set up 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 process has been dogged by numerous problems arising from its lack of resources and personnel and the fact that the new justice system had to be built from scratch.

Since East Timor's independence on 20 May 2002, the SCU has operated under the authority of East Timor's Prosecutor-General. It is currently funded and staffed by the UN, but downsizing has been taking place for some time and there is concern about its future after the end of the current UNMISET mandate on 20 May. Already the SCU has concluded its investigations and filed its final indictments. The East Timorese government's commitment to the process is lukewarm at best and there is considerable uncertainty about
future investigations and trials after the UN withdraws its support.

The SCU has filed 95 indictments against 391 individuals, many including crimes against humanity charges. The indictments have resulted in 75 convictions - mainly of lower-level East Timorese militia members and
three acquitals. However, 303 out of the 391 indictees are Indonesian military officers or others who remain at large in Indonesia effectively beyond the reach of the court.