East Timor Federation Urges International Tribunal on Timor Vote Anniversary Calls Case for Tribunal “Irrefutable”
30 August 2000
Contact: John M. Miller, ETAN, +1-718-596-7668; +1-917-690-4391 (US) Paul Barber, TAPOL, +44-1420-80153 (UK)
Kofi Annan and Xanana Gusmão
Photo: Jörg Meier
Calling “the case for an international tribunal for East Timor … now irrefutable,” the International Federation for East Timor (IFET) today urged UN Secretary General Kofi Annan immediately take steps to establish one. In a letter delivered to the Secretary-General on the anniversary of East Timor’s vote for independence, IFET wrote that the recent passage of a constitutional amendment introducing a non-retroactivity principle “confirms our prior assessment that the Indonesian judicial system cannot bring the perpetrators of the violence and destruction in East Timor to justice.” IFET warned that failure by the U.N. “to act decisively to end impunity for crimes committed in East Timor” encourages those responsible for the violence to “continue their reign of terror in the West Timor refugee camps and their attacks on civilians and UN peacekeepers across the border…. As long as the perpetrators of last year’s mayhem enjoy impunity, there is no incentive for them to stop.” IFET reminded the Secretary-General that he and other U.N. officials have “repeatedly stated that you are holding the possibility of an international tribunal in abeyance to give the Indonesian justice system a chance to try the crimes.” But IFET wrote, “little progress has been made in bringing justice to the people who suffered so much for expressing their desire for freedom. The arguments against allowing Indonesia to take responsibility for trying those responsible for the violence are overwhelming and we urge you to act immediately to set the international process in motion.” In the months leading up to last August 30 vote in East Timor, the International Federation for East Timor sent 140 non-partisan observers to East Timor to observe the U.N.-administered consultation process. IFET was formed in 1991 to support the self-determination process for East Timor at the United Nations. It now has 39 member groups from 23 countries. A copy of today’s and a previous letter can be found at http://www.etan.org/ifet.
August 30, 2000 Hon. Kofi Annan United Nations Secretary-General UN Secretariat New York, NY 10017 By fax to 212-963-2155 Dear Excellency: Recent developments in East Timor and Indonesia have greatly increased both the urgency and the necessity of an international tribunal to bring those responsible for committing and ordering crimes against humanity in East Timor to justice. As we wrote to you on 5 July, the International Federation for East Timor and many other people around the world believe that an international tribunal is essential to punish and deter past and future violence against the people of East Timor. Militia forces are now escalating violence in East Timor, with no effective effort by the Indonesian military to stop them, and recently killed two UN peacekeepers. One of the most effective ways the UN can prevent more criminal militia activity is to make it clear both to the militias and to TNI officers who support or tolerate them that the international community will ensure they are held to account for their crimes. For as long as the perpetrators of last year’s mayhem enjoy impunity, there is no incentive for them to stop. The recent enactment by Indonesia’s People’s Consultative Assembly (MPR) of a constitutional amendment, which introduces the principle of ‘non-retroactivity’ into Indonesian law without any exceptions, is a major setback. It effectively grants an amnesty to the Indonesian military officials who ordered others to commit crimes against humanity in East Timor and Indonesia. Many UN officials, including yourself and the High Commissioner for Human Rights, have repeatedly stated that you are holding the possibility of an international tribunal in abeyance to give the Indonesian justice system a chance to try the crimes. More than four months have passed since the date by which Indonesia’s Attorney General promised the international community trials would begin, and they are not on the horizon. The MPR decision confirms our prior assessment that the Indonesian judicial system cannot bring the perpetrators of the violence and destruction in East Timor to justice. The case for an international tribunal for East Timor is now irrefutable. The MPR decision shows that the concerns expressed in our letter of 5 July about the lack of political will behind the Indonesian process were well-founded. The MPR’s defiance of the international community and internationally-accepted legal principles is unacceptable and once again we call upon you to recommend to the Security Council that it uses its powers to establish an ad hoc international tribunal without delay. As Secretary-General, you have a duty to act on the recommendations of the UN Commission of Inquiry report, which found evidence of ‘a pattern of serious violations of fundamental human rights and humanitarian law…[including] violations of the right to life and to freedom from torture, cruel, inhuman or degrading treatment or punishment, [and] violence against women…’ These are crimes of universal jurisdiction which must now be dealt with before an international tribunal as recommended by the Commission of Inquiry. In your letter of 31 January accompanying the Commission of Inquiry report you said: ‘…the actions violating human and international humanitarian law were directed against a decision of the Security Council and were contrary to the agreements reached by Indonesia with the United Nations to carry out the decision of the Security Council. This fact reinforces the need to hold the perpetrators accountable for their actions… The International Commission of Inquiry found that the United Nations and the international community had a particular responsibility to the people of East Timor in connection with investigating the violations, establishing responsibilities, punishing those responsible and promoting reconciliation. I believe the United Nations has an important role to play in this process in order to help safeguard the rights of the people of East Timor, promote reconciliation, ensure future social and political stability and protect the integrity of Security Council actions.’ It appears that Indonesia sees the international community as impotent – all talk and no action. In a phrase, which is often applied to and used by UN missions in East Timor, “words are not enough”. If you now fail to act decisively to end impunity for crimes committed in East Timor, those responsible for the violence will continue their reign of terror in the West Timor refugee camps and their attacks on civilians and UN peacekeepers across the border. The effect of the MPR decision is that a new Article 28 (I) is added to the Constitution. It provides that ‘…the right not to be charged on the basis of retroactivity is a basic human right that may not be breached under any circumstances.’ The principle of ‘non-retroactivity’ is a fundamental human right, but under international law the principle does not apply in the case of acts or omissions which were crimes under international criminal law at the time they were committed (see Article 15 (2) International Covenant on Civil and Political Rights). Critically, no similar proviso has been included in the constitutional amendment. Offences under international criminal law, in particular crimes against humanity of the type committed in East Timor – murder, torture, deportation and sexual offences committed as part of a systematic attack against the civilian population – are not presently crimes under Indonesian law. The attempt (albeit flawed) to incorporate such crimes in the human rights courts bill now before the Indonesian Parliament will be ineffective in terms of past crimes. The draft provision in the bill, which would have allowed for an ad hoc court to be set up to try past ‘gross violations of human rights’, will have to be deleted in deference to the amended Constitution. All that remains is the possibility of the perpetrators being tried under the ordinary Penal Code of Indonesia, which is wholly inadequate. As well as not including crimes against humanity, it does not allow for military leaders to be tried under the principle of command responsibility. Inevitably, lower-ranking soldiers and militia members would be targeted and higher-ranking military officers responsible for planning the violence would escape with impunity. Furthermore, the current procedural and institutional safeguards for the rights of defendants fall far short of accepted human rights standards. We are particularly worried by the recent statement of the then Minister for Human Rights, Hasballah M Saad, that the recent joint civilian-military tribunal used in Aceh can be a precedent for trials of other past crimes against humanity. The Aceh tribunal was essentially a military court and, therefore, breached all known international standards concerning the need for independence and impartiality. We are also concerned by the failure of an Indonesian court to try prominent militia leader Eurico Guterres for illegal possession of weapons because it was unable to decide if he was following military orders or acting on his own. The other concerns expressed in our letter of 5 July – the flaws in the human rights courts bill and the considerable time it will take to ensure that the competence and integrity of the judiciary meets international standards – still apply. Exactly a year has past since East Timor’s momentous vote for independence, but little progress has been made in bringing justice to the people who suffered so much for expressing their desire for freedom. The arguments against allowing Indonesia to take responsibility for trying those responsible for the violence are overwhelming and we urge you to act immediately to set the international process in motion. The upcoming Millennium Assembly provides an important opportunity for you and the United Nations to stand firmly for accountability and the rule of law with regard to Indonesian crimes in East Timor. We hope that you and the Security Council, as well as the General Assembly, will meet that responsibility and fulfill the obligation the UN incurred to the East Timorese people when it facilitated the consultation process in East Timor last year. Sincerely, Charles Scheiner United Nations Representative, International Federation for East Timor cc: Foreign Ministers of Portugal and Indonesia Ambassadors to the United Nations of the Security Council member states International media
Member groups of the International Federation for East Timor (listed on the letterhead):
Australia-East Timor Association Australians for a Free East Timor Brisbane East Timor Office (Australia) Campaign for an Independent East Timor (South Australia) East Timor International Support Center (Australia) East Timor Relief Association (Australia) Friends of East Timor, Western Australia Hobart East Timor Committee (Australia) Lismore Friends of East Timor (Australia) Canadian Action for Indonesia and East Timor East Timor Alert Network (Canada) National Council of Timorese Resistance (CNRT, East Timor) Pacific Concerns Resource Centre (Fiji) East Timor Group of Committee of 100 (Finland) Agir Pour Timor (France) Association Solidarité Timor-Oriental (France) Gesellschaft fur Bedrohte Völker (Germany) Watch Indonesia! (Germany) East Timor Roundtable (Hong Kong) Indian Society for Human Rights Forum Solidaritas Untuk Rakyat Timor Lorosae (FORTILOS, Indonesia) East Timor Ireland Solidarity Campaign Latin American and Mediterranean Coalition for East Timor (Italy) Free East Timor – Japan Coalition East Timor Information Network (Malaysia) International Platform of Jurists for East Timor (Netherlands) Norwegian Cooperation Council for East Timor and Indonesia Asia-Pacific Coalition on East Timor (Philippines) A Paz E Possivel em Timor Leste (Port.) Commissao para os Direitos do Povo Maubere (Portugal) Movimento Christao para a Paz (Port.) Paz E Justica para Timor Leste (Portugal) East Timor Scotland Support Group Instituto de Estudios Politicos para America Latina y Africa (Spain) Osttimor Kommitten (Sweden) TAPOL (U.K.) British Coalition for East Timor East Timor Action Network (USA) International Secretariat, Parliamentarians for East Timor
