Prosecuting International Crimes
January 31st, 2005
Deutsche Kommission Justitia et Pax
Misereor
missio
Diakonie
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Aide-Mémoire
61st Session of the UN Commission on Human Rights 14th March to 22nd April 2005
UN should rethink justice initiative and bring impunity in East Timor to an end
The failed justice process
Five years after the UN-sponsored Popular Consultation on the question of independence and the end of Indonesia’s brutal occupation of East Timor the process of bringing those to justice who are responsible for crimes against humanity committed on the territory of East Timor in 1999 has stalled. Neither the ad hoc Human Rights Court in Jakarta nor the UN-sponsored court system in East Timor have been able to hold those accountable who bear the greatest responsibility. Justice for East Timor remains elusive. The credibility of UN engagement to end impunity for the most serious international crimes is on the line, as is the development for the respect for the rule of law within Indonesia and East Timor. The gross violations of human rights perpetrated in East Timor in 1999 by pro-Indonesian militias supervised and supported by the Indonesian military have been on the agenda of the UN Commission on Human Rights (UNCHR) more than once. In Article 16 of the Security Council Resolution 1272 (1999) of October 25, 1999 1, which established the mandate of UNTAET (United Nations Transitional Administration for East Timor), the Security Council requested that the persons responsible for the atrocities should be brought to justice. Immediately after the blood bath in September 1999 the UNCHR held a special session – the fourth in the history of the Commission – and adopted a resolution requesting the Secretary General (SG) to establish an International Commission of Inquiry. This Commission recommended that the extensive violence merits the establishment of an international tribunal.
The ad hoc Human Rights Court in Jakarta: unwilling
Repeatedly, the Government of Indonesia has committed itself, vis-à-vis the UNCHR, to bring those responsible to justice. In the meantime, in almost all the cases, which had been brought before the ad hoc Human Rights Court in Jakarta (involving a total of only 18 defendants), a final verdict has been issued. Of the six defendants who had been convicted, only the former Governor of East Timor, Abilio Soares, had to spend a few weeks in prison, before the Supreme Court overturned his sentence and he himself was acquitted. The 10-year prison term handed down to the militia leader Eurico Guterres has already been halved; his trial is the only one still continuing, whereby, pending appeal, Guterres remains free. Major General Adam Damiri, the highest-ranking Indonesian military officer among the defendants, was sentenced to three years in prison after his trial in the court of first instance; his conviction has also been overturned, with the court of last instance stipulating his acquittal. The fact that some of the accused were actually convicted is attributable to the courage and competence of a handful of judges who applied the law despite the obvious lack of strategy on part of the prosecution. Next to the low turnout of convictions, the judgments of the Jakarta Court do not reflect the actual nature of the crimes committed and the responsibility of the military. The crimes are portrayed as being part of spontaneously erupted violence between two rival groups of society in East Timor. The de facto control of the TNI over the militias was not addressed during the trials.
The Prosecution failed to indict some of the most prominent suspects such as General Wiranto, former Minister of Defence and Commander-in-Chief of the Indonesian Armed Forces (Tentara Nasional Indonesia), and João Tavares, the former Commander-in-Chief of the militias.
This culture of impunity, of which this case is a powerful illustration, is not only a serious violation of human rights. By acquiescing to such blatant disregard for decisions of the Security Council and recommendations of the UNCHR, the credibility of the UN itself is also at stake.
The Serious Crimes Unit in Dili: unable
In East Timor the Serious Crimes Unit and the Special Panels for Serious Crimes established by the United Nations have made a tremendous contribution to justice for past crimes. The prosecutors of the Serious Crimes Unit have indicted up to 400 individuals. 70 have received prison sentences. However, due to a lack of cooperation on part of Indonesia’s authorities, East Timor’s Government and the United Nations the Court in Dili has been unable to put on trial those among the Indonesian military and administration bearing the greatest responsibility for the crimes. This situation creates, among the East Timorese population, the impression of unfair treatment of low-level East Timorese perpetrators.
Furthermore, the UN- sponsored prosecutors and judges must terminate their work in May 2005 as part of the completion strategy authorised by the Security Council. This means that almost half the murder cases will not have been investigated. With the termination of the work of the Special Panels the justice process will undoubtedly be considered a failed endeavour of international justice.
The solution cannot be to simply shut down the existing UN court system in East Timor. The mandate of the Special Panels has not been fulfilled yet. The UN is under an obligation to either reform the existing justice system or to establish new and more viable mechanisms. Therefore, the UNCHR should address these pressing concerns and make recommendations on how the justice process can be improved in the future. We propose that the UNCHR take the following options into account.
The Need for a UN-Commission of Experts
The Secretary-General has stressed his commitment to accountability for international crimes. On several occasions, the SG has expressed his willingness to establish an independent Commission of Experts to review the justice failures in East Timor and Indonesia and to advise him on the best options to ensure accountability. We strongly urge the UNCHR to support the Secretary General in this important initiative by making a recommendation in this regard and by offering expertise and cooperation in the creation of this expert body.
Indonesia – East Timor Truth and Friendship Commission
In December 2004 the governments of Indonesia and East Timor announced to establish a common Truth and Friendship Commission as an alternative to the justice process and notified the SG of their plans. This proposal is strongly opposed by civil society and human rights organisations in East Timor and Indonesia because it is feared that this Commission will result in a whitewash of the past.
We share their concerns about this proposal because it denies victims the essential right to justice and perpetuates impunity. It allows Indonesia to go scot-free after failing to pursue its obligations to genuinely prosecute criminals. It denies the value of the several authoritative accounts that already exist or are being finalized, such as the Final Report of the Timorese Reception, Truth and Reconciliation Commission (CAVR), which will be submitted before the CAVR is dissolved on 7. July 2005. In addition, this mechanism would rule out UN engagement. As the UN initiated and controlled the justice process in East Timor it has a fundamental interest in preventing its failure. The UN should stay involved and ensure that the negative legacy of its justice endeavours be corrected. An international expert commission would allow the UN to evaluate its justice process and supply the basis on how to proceed through expert advice. Timorese governmental support for this Truth and Friendship Commission is not an insurmountable obstacle, as continued UN engagement would free East Timor’s government from pressure by its powerful neighbour.
Judicial Solutions
The question of justice for East Timor poses numerous complicated problems that require creative solutions and the joint effort of not only the UN but also of the international community, the victims and their advocates. In the following section we propose three mechanisms that, provided they receive strong UN support, would be able to achieve accountability.
1. As a minimum we encourage that the judicial process of the Special Panels be continued with UN support so as to facilitate the rational completion of its proceedings. Due to the strong opposition voiced repeatedly by President Xanana Gusmão and other government officials to the serious crimes process and the general weakness of East Timor’s national judicial system it is unlikely that proceedings against militia suspects will be continued without UN support. East Timorese civil society and church organisations consistently demand justice for the victims.
The mandate of the Special Panels should be extended after May 2005 until it is fulfilled and the prosecution, defence and courts should be supplied with enhanced resources in order to function more effectively. International support should definitely not cease before national staff can fully take over the serious crimes process.
2. The second proposal, which would enable a more efficient rendering of justice, would be to restructure the Special Panels for Serious Crimes.
Here, the model of the Special Court for Sierra Leone could give some guidance. In this court system political influence is minimal as the Chief Prosecutor can act independently within the framework of his mandate. This is not the case in East Timor where the Prosecutor General is subject to political interference. The internationally funded Deputy Prosecutor General should be granted the power to transfer arrest warrants to Interpol and ensure international cooperation. As East Timor is now an independent country this measure could only be introduced through strong lobbying work on part of UN officials to start a legal reform of the prosecution service.
Creating a stronger prosecution in cooperation with the East Timorese parliament would not solve the question of cooperation by Indonesia, however. The court would still reside in East Timor and perpetrators in Indonesia. Thus, granting the reformed hybrid court Chapter VII-powers to subpoena individuals backed by strong international support could solve the cooperation issue.
3. The third option that should remain on the negotiation table is the establishment of an ad hoc international criminal tribunal set up by the Security Council like the Tribunals for the Former Yugoslavia and Rwanda. This tribunal could be established in a Southeast Asian country close to both East Timor and Indonesia. It would be staffed by international criminal law experts as well as Indonesian and East Timorese lawyers. Its international status in addition to its geographical distance from both parties to the conflict would ensure independence and credibility
Questions of costs, which resulted in the main criticism concerning the two ad hoc tribunals, can be handled efficiently. One possibility would have been to apply a model of voluntary contributions implemented in Sierra Leone supplemented by UN funds. Another would have been to limit the time frame to a small number of years.
It is essential that this option be considered as East Timorese victims’ groups and civil society overwhelmingly support it even though it is the option most difficult to achieve politically.
Should the Special Panels be closed down in May 2005 the UN would have to acknowledge even more criticism of its justice efforts: Not only the top perpetrators in Indonesia would not have been prosecuted but also in East Timor the UN would have failed to prevent blanket amnesty of perpetrators. Not only would the credibility of East Timor’s fledgling justice system be at stake but also that of the UN. We acknowledge the difficulties connected to the UN’s engagement in international justice but believe that in the case of East Timor there is a realistic chance to overcome the political obstacles.
On the basis of the situation outlined above, we recommend the following to the 61st UN Commission on Human Rights:
- to express outrage that the proceedings before the ad hoc Human Rights Court in Jakarta have amounted to „sham trials” leading to impunity; to press the Government of Indonesia (GoI) to transfer indictees to the Special Panels for Serious Crimes in East Timor and to fulfil their obligation under international law;
- to express dismay over the lack of support of the Serious Crimes process in East Timor by GoI, the Government of East Timor and the United Nations;
- to urge the Secretary General to establish an UN-Commission of Experts to evaluate the justice process, to recommend future measures and to offer expertise, cooperation and technical assistance;
- to initiate the establishment of an International Criminal Tribunal on human rights crimes committed in East Timor;
- in the alternative, to propose reforms of the Serious Crimes Process in East Timor modelled after the Special Court for Sierra Leone;
- as a minimum, to support the continuation of the Serious Crimes Process in East Timor after May 2005 under UN mandate with enhanced resources and support.
