14. Februar 2002
Deutsche Kommission Justitia et Pax German Justice and Peace Commission, Kaiser-Friedrich-Str. 9, 53113 Bonn, Tel.: +49-228-103217
in cooperation with:
Watch Indonesia! Planufer 92d 10967 Berlin Tel.: +49 30 698 17 938
Aide Mémoire 58th Session of the UN Commission on Human Rights 18th March to 26th April 2002
Recent Developments
Lack of progress can be observed concerning the prosecution of violations of human rights and of crimes against humanity perpetrated by the Indonesian army and their proxies on East Timorese civilians and UN employees before, during and after the 30 August 1999 popular consultation in East Timor. The absence of seriousness being given by the government of Indonesia to address the expectations of the international community ruins all hopes expressed by the Human Rights Commission one year ago. Even after more than 2 ½ years, the perpetrators of the human rights crimes still enjoy impunity. It is time to place a real deadline on Indonesia. In East Timor, which becomes independent in May 2002, no full reconciliation process can start in the knowledge that perpetrators will go unpunished. The establishment of the Reception, Truth and Reconciliation Commission in East Timor is welcomed but may not lead to be an alternative to the delivery of justice. Indonesia, though having promised to set up an ad-hoc human rights court for East Timor (Law No. 26/2000) more than two years ago in order to prevent the installation of an International Tribunal, failed to establish it in time. Instead, Indonesia showed commitment only now and again in order to please the United Nations and the international community. For example, the announcement made by the Indonesian government on 21 March 2001 to set up an ad-hoc human rights court was followed only by a series of delays and postponements. The government of Indonesia continues to ignore the Memorandum of Understanding signed by the UN Transitional Administration in East Timor and the Indonesian government in April 2000, thus showing no commitment to cooperation with the High Commissioner for Human Rights. From the beginning the process of setting up an ad-hoc court was accompanied by grave deficiencies. The legislation is not consistent with international human rights law and does not conform to international standards of independence and impartiality. There is no victim and witness protection program, no adequate training for judges and other relevant officials in the practical implementation of international human rights law. The Law on Human Rights Courts (April 2001, altered September 2001) limits the jurisdiction of the courts over crimes committed during the months of April and September 1999 and only in Dili, Liquiça and Suai, so that the vast majority of crimes committed in 1999 and before cannot be considered by it. At the same time the law is hampering the identification of the participation of the military apparatus and makes it difficult to prove the systematic of the crimes against humanity. Contrary to the recommendation of the national Human Rights Commission KOMNAS HAM to bring 33 perpetrators to justice, including former defence minister Wiranto and Major General Zacky Anwar, the list of those who might be accused was reduced to only 18/19 persons, excluding some most responsible military, police and other state officials. Two of those high-ranking military officials named in the first list even were promoted. The suspected ones are not being kept in detention for investigation. The selection of judges and prosecutors for the ad-hoc human rights court has being delayed again for half a year. The recruited judges and prosecutors do not reflect experience in human rights law and are not impartial. The process of the recruitment itself demonstrates legal and technical weaknesses. It lacks transparency, not allowing the participation of civil society groups but instead of the military and raises doubts about the capability and willingness to create an independent judiciary. Repeated promises to hold to account human rights perpetrators of serious crimes in East Timor in 1999 only have resulted in delays in setting up the ad-hoc human rights court. The permanent impunity remains one of the main causes of the continuing human rights abuses in Indonesia. By delaying to bring perpetrators to justice Indonesia, who attempted to prove the capability of its national legal system, shows institutional and legal weaknesses and the incapability to deal with the crimes. This incapability, combined with political resistance, leads to serious doubts of the government’s commitment for justice. The missing political will that prevented cases from being resolved arouses suspicion that Indonesia is playing on time. There are deep concerns that fairness and justice will be jeopardised. Indonesia demonstrates resistance to justice not only by the failure to hold to account the perpetrators of human rights abuses but also by hindering the investigations carried out by the UNTAET Serious Crimes Unit in East Timor. The work of the Serious Crimes Investigation Unit, overall cumbersome by lack of facilities, staff and international support, was aggravated by Indonesia’s negative respond. By cancelling the cooperation with the Serious Crimes Unit, Indonesian authorities protect the rear-rank men behind the perpetrators of human rights abuses in East Timor.
Recommendations
Justitia et Pax and Watch Indonesia! call on the UN Commission to:
- adopt a resolution condemning Indonesia’s lack of political will to bring to justice those responsible for the crimes committed in East Timor. Only a serious approach of the UN Human Rights Commission and the international community could prevent, that Indonesia’s military escapes justice at all and can behave with total impunity.
- urge the Indonesian government to set up an ad hoc human rights court for East Timor immediately without further delay in accordance with international standards for fair trial.
- fulfil the duty if Indonesia does not bring up perpetrators to justice by July 2002 with appropriate sentences, to set up an international tribunal, as recommended by the United Nations Commission on Inquiry and the three UN Special Rapporteurs more than two years ago.
- urge the Indonesian government to fully cooperate with the Serious Crimes Investigation Unit in East Timor.
- ensure that the Serious Crimes Unit in East Timor has all the resources in terms of personnel and equipment in order to complete its work efficiently. This would include specialist advisors, technical experts, access to information, including from classified sources. There should be contingency plans for the granting of protection of key witnesses, including the provision of asylum as and when necessary, and specialists in crimes such as rape and sexual abuse.
- urge the Indonesian government to effectively disarm and prosecute the remaining militias in West Timor and in any part of the country, so that potential future cross-border destabilisation is averted. This will enable the remaining refugees to return to East Timor if they so wish.
- urge the Indonesian government to oblige the Indonesian army and police to guarantee the safety of the humanitarian workers and volunteers in West Timor so that they are able to return back and continue their work.
