http://www.wcl.american.edu/hrbrief/131.cfm

East Timor excerpts - full text of article at
http://www.wcl.american.edu/hrbrief/13/roc.pdf

Human Rights Brief

A Legal Resource for the International Human Rights Community

Volume 13 Issue 1

Fall 2005

Review of Conference: "International Criminal Tribunals in the 21st Century"

by Tim Curry

THE WAR CRIMES RESEARCH OFFICE,1 an organization that provides confidential legal research and technical assistance to international criminal tribunals around the world, celebrated its 10th anniversary this year. To honor this special milestone, the American University Washington College of Law hosted a conference on September 30, 2005, entitled "International Criminal Tribunals in the 21st Century."2 Scholars, judges, practitioners, and luminaries in international criminal law from around the world converged in Washington, D.C., for a day of discussions with some of the brightest minds in the field.

LESSONS LEARNED ON THE EFFECTIVE APPREHENSION OF INDICTEES

REGARDLESS OF THE SIZE, COMPOSITION, OR LOCATION of the court, any future international criminal tribunal will have the difficult task of apprehending indictees. Officials from the Office of the Prosecutor at the ICTY, the ICTR, the Special Court for Sierra Leone, and the Specials Panels for Serious Crimes in East Timor shared some lessons they learned in their tenure at their respective courts and offered suggestions for future courts.

SECURING THE COOPERATION OF THE INTERNATIONAL COMMUNITY IS ESSENTIAL

Officials from each of the tribunals agreed that the cooperation of the international community is instrumental to apprehending indictees and fugitives. Without the cooperation of states where indictees seek refuge, capture is nearly impossible. None of these tribunals has its own police force and therefore none has the authority to arrest or capture indictees. Each tribunal must rely on officials of the state in which the indictee is located to apprehend them

For the Special Panels for Serious Crimes in East Timor, this kind of international cooperation was glaringly deficient. Siri Frigaard, the Norwegian prosecutor who served as the Deputy General Prosecutor at the Special Panels, spoke to conference attendees about how politics complicated the apprehension of indictees. The Special Panels were created to try Indonesians and East Timorese believed to be responsible for atrocities committed in East Timor in 1999. Indonesia, however, refused to turn any of its citizens over to the Panels for trial and East Timor and the UN seemed unwilling to push the issue. As an example, Frigaard pointed to their attempts to distance themselves from the indictment against the former head of the Indonesian military, General Wiranto. The UN publicly stated that the Panels were part of the East Timorese judicial system and that the UN took no responsibility for the indictment. At the same time, the Timorese government, which was trying to rebuild relations with Indonesia, pointed out that the Panels were a UN-conceived court and disavowed any connection to the indictment. Without government or UN support, those most responsible for the crimes might never be turned over to the Special Panels. Indeed, to date, none of the Indonesians indicted by the Special Panels have been tried in East Timor and the question of whether the Timorese people will ever receive justice remains in doubt. Frigaard did say that despite the inability to try Indonesian leaders, many of the families of the victims had expressed some satisfaction that by indicting these men the Special Panels had apportioned some blame.

HYBRID COURTS, DOMESTIC WAR CRIMES CHAMBERS, AND REGIONAL CRIMINAL
COURTS: ALTERNATIVE MODELS OF ACCOUNTABILITY

The conference concluded with a discussion on the viability of hybrid courts, domestic war crimes chambers, and regional criminal courts. Judge Phillip Rapoza, a former judge with the Special Panels for Serious Crimes in East Timor and a current judge on the Massachusetts Court of Appeals, shared his experiences on the world's first "hybrid" court. Rapoza was on the bench at the end of the Special Panels' mandate and echoed some of Frigaard's observations from earlier in the day. For Rapoza, the Special Panels' greatest obstacles were the failure of the local population, the East Timorese government, and the UN to "take ownership" of the judicial process, as well as the failure of the international community to "buy-in" to the court.

Rapoza believed that many of the Special Panels' problems stemmed from it being the first court of its kind. For Rapoza, four questions remain unanswered with the end of the Panels' mandate. First was the question of who is responsible for the nuts and bolts of the process. When the UN established the United Nations Transitional Authority for East Timor (UNTAET) to manage the territory's transition to statehood, there were no funds set aside specifically for the Panels. Competition for money was fierce amongst the various UNTAET sectors. Because the Panels were within a national court system, East Timor was ultimately responsible for security once it became a sovereign state. The court, however, only obtained one security guard from the government and he was under-trained, unarmed, and often asleep. There was absolutely no security for victims or witnesses. Despite these
major concerns the UN provided no additional security.

A second unanswered question revolved around who was responsible for the results of the Panels. As Frigaard discussed earlier in the day, when the UN or East Timor did not like a decision the Panels made, they distanced themselves from the court, as exemplified in the aftermath of the Wiranto indictment. Rapoza believed that these
actions left the Panels isolated and unsupported.

Rapoza's remaining questions involved the closely related issues of who is responsible for the legacy of the Special Panels and who should continue the unfinished process. When the UN Security Council voted to end the mandate of the Special Panels in May 2005, prior to the completion of its work, the question of what happened to the untried cases was left in limbo. Consequently, those responsible for the crimes in East Timor may never be held accountable.

END