26 May 2005

Executive Summary

In fulfilment of the request of the Security Council that the Secretary-General inform it of developments in the area of prosecution of serious violations of international humanitarian law and human rights in East Timor committed in 1999, the Secretary-General appointed a Commission of Experts on 18 February 2005. The members of the Commission were Justice P. N. Bhagwati (India), Dr. Shaista Shameem (Fiji) and Professor Yozo Yokota (Japan). The Commission was requested to report to the Secretary-General within three months.

According to its terms of reference, the Commission of Experts was mandated: To review the judicial processes
of the work of the Indonesian Ad Hoc Human Rights Court on East Timor in Jakarta and the Serious Crimes Unit (SCU) and the Special Panels for Serious Crimes in Dili; To assess the effective functioning of the two institutions; To identify obstacles and difficulties encountered by the two institutions; To evaluate the extent to which the two institutions have been able to achieve justice and accountability for the crimes committed in East Timor; To consider and recommend legally sound and practically feasible measures so that those responsible
are held accountable, justice is secured for the victims and people of Timor-Leste, and reconciliation is promoted; To consider ways in which its analysis could be of assistance to the Commission of Truth and Friendship that the Governments of Indonesia and Timor-Leste have agreed to establish, and to make appropriate recommendations to the Secretary-General in this regard. In preparing its report, the Commission of Experts has compiled and analysed substantial primary source materials such as legislation, indictments, judgements, written briefs and trial transcripts, has received several responses to detailed questionnaires addressed to institutions and individuals in Indonesia and Timor-Leste; and has studied observations made
by United Nations trial observers and non-governmental organizations (NGOs). The Commission conducted a fact-finding mission to Timor-Leste to meet with the President of Timor-Leste, officials of the national and local
Governments, members of the judiciary, staff of the United Nations Mission of Support in Timor-Leste (UNMISET), victims' groups and NGOs. On 11 May 2005, the Commission received an invitation to visit Jakarta from 18 to 20 May 2005. The Commission accordingly visited Jakarta on 18, 19 and 20 May 2005

The Commission of Experts submitted its Report to the Office of the United Nations High Commissioner for Human Rights on 26 May 2005. The report describes the terms of reference and methodology of the Commission, identifies relevant principles and international standards, and provides a historical overview of the events of 1999 and the establishment of the judicial processes in Jakarta and Dili. The report comprehensively analyses the two judicial processes, and sets out findings in relation to the Commission's terms of reference. The Commission considers available judicial initiatives and mechanisms and presents its recommendations on the
most feasible mechanisms to ensure that justice and accountability are secured for the people of Timor-Leste. The Commission's findings and recommendations are briefly summarized below.

The Serious Crimes Unit, Special Panels for Serious Crimes and Defence Lawyers Unit (Timor-Leste)

The Serious Crimes Unit (SCU) and Special Panels for Serious Crimes (Special Panels) were established in 2000 by the United Nations Transitional Administration in East Timor (UNTAET) to conduct investigations, prosecutions and judicial proceedings relevant to crimes against humanity and other serious crimes committed in East Timor. The Defence Lawyers Unit (DLU) was established in 2002 by UNMISET. The SCU is legislatively subordinate to the Office of the General Prosecutor of Timor-Leste. The Special Panels operate within the District Court of Dili, and are composed of two international and one Timorese judge.

All SCU investigations were concluded in November 2004, in accordance with Security Council resolutions 1543 (2004) and 1573 (2004) of 14 May and 16 November 2004, respectively. The mandate of the SCU will formally terminate on 20 May 2005. The Security Council has underlined the need for the United Nations Secretariat, in agreement with the authorities of Timor-Leste, to preserve a copy of all the records compiled by the SCU.

Since the SCU commenced its work in 2000, 95 indictments have been filed with the Special Panels, indicting 391 persons. At the time of the finalization of the present report, there are charges pending against 339
accused who remain at large, outside the jurisdiction of Timor-Leste. Among those are the former Indonesian Minister of Defence and Commander of the Indonesian National Military (TNI), Wiranto, six high-ranking TNI
commanders, and the former Governor of East Timor. To date, the Special Panels have issued 284 arrest warrants. The arrest warrant for Wiranto is still in the hands of the General Prosecutor of Timor-Leste, who has not forwarded it to Interpol.

The Commission finds that the serious crimes process in Timor-Leste has ensured a notable degree of accountability for those responsible for the crimes committed in 1999. Investigations and prosecutions by the SCU have generally conformed to international standards. The Special Panels have provided an effective forum for victims and witnesses to give evidence. The number and quality of some of the judgements rendered is also testimony of the ability of the Special Panels to establish an accurate historical record of the facts and events of 1999 during the short duration of its work. In general, the decisions of the Special Panels will assist in
establishing clear jurisprudence and practice for other district courts dealing with serious crimes in the future. In addition, the Special Panels has developed its own jurisprudence, departing from the law of other international criminal tribunals whenever appropriate. The serious crimes process has also significantly contributed to strengthening respect for the rule of law in Timor-Leste, and has encouraged the community to participate
in the process of reconciliation and justice. The existence of an effective and credible judicial process such as the Special Panels has also discouraged private retributive and vengeful attacks.

However, there is frustration among the people of Timor-Leste about the inability of the judicial process to bring to justice those outside the country's jurisdiction, particularly high-level indictees.. Similarly, there is concern that the overwhelming majority of offenders convicted by the Special Panels are from Timor-Leste.

The Commission concludes that the serious crimes process has not yet achieved full accountability of those who bear the greatest responsibility for serious violations of human rights committed in East Timor in 1999. This may be attributed to several factors.

The Commission finds that the SCU, the Special Panels and the DLU have not received sufficient resources to meet the minimum requirements of the respective mandates of these bodies. In this regard, the Commission has
considered levels of funding available to other internationalized and hybrid criminal tribunals, taking into account the particular circumstances of Timor-Leste.

The Commission finds that at present the Office of the General Prosecutor does not function independently from the Government of Timor-Leste. The handling of the arrest warrant in the indictment of Wiranto et al. is illustrative in this regard.

The Commission finds that the lack of access to evidence and suspects in Indonesia is a critical challenge impeding the progress of the serious crimes processes in Timor-Leste. The Commission notes that at present,
there is no extradition agreement between Indonesia and Timor-Leste or any other form of effective mutual legal assistance framework to enable the arrest and transfer of indictees currently at large. It is unlikely that the Governments of Indonesia and Timor-Leste would voluntarily enter into such arrangements in the current political climate.

The Ad Hoc Human Rights Court for Timor-Leste (Indonesia)

The Ad Hoc Human Rights Court for Timor-Leste (Ad Hoc Court) was established pursuant to legislation to try individuals responsible, inter alia, for crimes against humanity committed in April and September 1999 in
Timor-Leste.

The Commission finds that the Commission of Inquiry into Human Rights Violations in East Timor (KPP HAM) conducted the inquiry stage of the ad hoc judicial process in a comprehensive, credible and objective manner, in
compliance with international standards applicable to pro justitia inquiries. The resulting report prepared by KPP HAM documents in some detail the relevant crime base, linkage evidence and alleged involvement of individuals from military and civilian institutions. The KPP HAM Report was forwarded to the Attorney-General for further investigations, and as appropriate, prosecution before the Ad Hoc Court.

From the list of about 22 suspects, the Attorney-General indicted 18 individuals from the military and the police who were directly in command in East Timor at the material time, as well as two civilian government officials and a militia leader. The highest-ranking officer charged was a regional military commander for East Timor. The Attorney-General had declined to prosecute other high-ranking suspects listed in the KPP HAM Report. The trials of all 18 defendants have been concluded and all defendants but one have been acquitted, either at trial or on appeal.

Based on a thorough analysis of the available facts, the Commission has concluded that the prosecutions before the Ad Hoc Court were manifestly inadequate, primarily due to a lack of commitment on the part of the
prosecution, as well as to the lack of expertise, experience and training in the subject-matter, deficient investigations and inadequate presentation of inculpatory material at trial. For instance, the Commission finds that the formulation of the case against the defendants in the indictments was unduly restrictive and not substantiated by the requisite material facts. The selection of prosecution witnesses was also unsatisfactory. Most of the prosecution witnesses who testified in these trials were indictees, individuals affiliated to the TNI and government officials. The prosecution did not make substantial use of available documentary evidence and
witnesses's statements gathered by KPP HAM and the Serious Crimes Unit investigators. Significantly, investigations and prosecutions were undertaken at a time when there was an evident lack of political will to
prosecute the defendants and lack of material and moral support for these investigations.

The Commission has also considered the performance and conduct of the judges of the Ad Hoc Court. The Commission finds that the courtroom atmosphere did not provide for a credible judicial forum that would inspire
confidence in the public mind. There were inadequate facilities and legislative measures to protect victim-witnesses, particularly those from Timor-Leste. The Commission has also extensively reviewed the trial
judgements. The Commission finds that the inconsistent verdicts and factual findings of the Ad Hoc Court resulted directly from the application of diverging judicial techniques, differing legal interpretation of identical
subject-matter, and the lack of willingness or otherwise to utilize international jurisprudence and practices and proficiency in analytical evaluation of the facts and law.

The Commission finds that the judicial process before the Ad Hoc Court was not effective in delivering justice for the victims of serious violations of human rights and the people of Timor-Leste. The failure to investigate
and prosecute the defendants in a credible manner has not achieved accountability of those who bear the greatest responsibility for serious violations. Many aspects of the ad hoc judicial process reveal scant respect for or conformity to relevant international standards.

Commission of Truth and Friendship

The Commission of Experts finds that there are provisions in the terms of reference of the Commission of Truth and Friendship that contradict international standards on denial of impunity for serious crimes and some
provisions which require clarification and re-assessment. The Commission also finds there was a lack of mechanism compelling witnesses to tell the truth before the Commission of Truth and Friendship. However, the spirit of reconciliation and providing reparations in the other provisions of the terms of reference offer appropriate avenues for rebuilding the relationship between Indonesia and Timor-Leste.

Recommendations relevant to Timor-Leste

In making its recommendations relevant to the serious crimes process, the Commission takes the view that without the presence of an international component, it would be impractical to expect that the prosecutorial
authorities, Special Panels and defence counsel of Timor-Leste would have the capacity, in the foreseeable future, to undertake the investigation, prosecution, adjudication and defence of serious crimes cases in accordance with international standards.

The Commission urges the Security Council to ensure that the SCU and Special Panels and DLU be rovisionally retained until such time as the Secretary-General and Security Council have had an opportunity to examine
the recommendations made in the present report. The Commission further recommends that the Security Council ensure the continuity of the work of the SCU, Special Panels and DLU until such time as the investigations,
indictments and prosecutions of those who are alleged to have committed serious crimes are completed.

In the alternative, if the above recommendation is not retained, the Commission strongly recommends that the United Nations set up a mechanism under which investigations and prosecutions of serious violations of human
rights could be continued and completed. The Commission specifically recommends such a mechanism, which would allow the Government of Timor-Leste to retain sovereignty over the justice process, facilitate institutional capacity-building, and provide avenues for the international community to assist in the process as appropriate.

Recommendations relevant to Indonesia

The Commission recommends that Indonesia strengthen its judicial and prosecutorial capacity by assembling a team of international judicial and legal experts, preferably from the Asian region, to be appointed by the
Government of Indonesia on the recommendation of the Secretary-General, with a clear mandate to provide independent specialist legal advice to the Office of the Attorney-General on international criminal law, international humanitarian law and international human rights standards, including procedural and evidentiary standards.

The Commission recommends that the Attorney-General's Office comprehensively review prosecutions before the Ad Hoc Court and re-open prosecutions as may be appropriate, on the basis of grounds available under
Indonesian law. If appropriate, the Commission recommends that de novo trials take place and that indicted persons be re-tried in accordance with acceptable national and international standards.

The Commission recommends that under the strict supervision, guidance and assistance of an appointed delegation of SCU staff members and/or other persons appointed by the United Nations, relevant evidence and case files pertaining to the Wiranto et al. indictment be handed over to the Attorney-General of Indonesia for investigation and prosecution. The Commission emphasizes that this is an option that would have to be
discussed with the SCU/United Nations delegation, as there may be witness protection issues, confidentiality and other security concerns that may arise. The Commission suggests that the modalities of this option be
resolved by the parties concerned.

The Commission recommends that the Government of Indonesia be required to provide a comprehensive report to the Secretary-General on the outcome of its investigations concerning SCU indictments, detailing the reasons for its decision to prosecute or otherwise, including whether there is to be a re-trial of any of the individuals previously tried before the Ad Hoc Court.

It is recommended that the Government of Indonesia implement these recommendations within six months from a date to be determined by the Secretary-General.

Establishment of an international criminal tribunal for Timor-Leste

If the recommendations above relevant to Timor-Leste and Indonesia are not initiated by the respective Governments within the recommended time frames or are not retained by the Security Council, the Commission recommends that the Security Council adopt a resolution under Chapter VII of the Charter to create an ad hoc international criminal tribunal for Timor-Leste, to be located in a third State.

Utilizing the International Criminal Court

If the recommendation to establish an international criminal tribunal for Timor-Leste is not retained, the Security Council may consider the possibility of utilizing the International Criminal Court as a vehicle for investigations and prosecutions of serious crimes committed in East Timor.

Exercise of universal jurisdiction

Notwithstanding the recommendations above, the Commission observes that Member States of the United Nations may, in accordance with their respective national laws, pursue the investigation and prosecution of
persons responsible for serious violations of human rights in East Timor in 1999.

END