Justice for Serious Crimes Committed during 1999 in Timor-Leste: Where to From Here? - Daniel Pascoe

Justice for Serious Crimes

Committed during 1999 in Timor-

Leste: Where to From Here?

Daniel Pascoe

October 2006*

* Originally submitted as a thesis for the Bachelor of Asian Studies (Honours) at the Australian National University. I extend my sincerest thanks to my supervisors, Dr George Quinn and Dr Daniel Fitzpatrick, for their advice and encouragement; to Professor James Cotton, Jim Dunn, Dr Edward Aspinall, Dr Andrew McWilliam, Letitia Anderson, Dr Susan Harris-Rimmer, Professor Jim Fox, Father Frank Brennan, Carolyn Graydon, Lia Kent, Professor Hilary Charlesworth, and Professor Tim Lindsey for their contributions and advice by way of interview; and to Alex McPherson, Bruce Hunt, Tal Karp, and Sue Tanner, for reading through my drafts. Further comments or discussion most welcome [email protected]

Introduction

As a result of the militia violence committed during 1999 in East Timor,1 between 1400 and 1500 mainly unarmed civilians were murdered,2 74 percent of existing buildings were burnt to the ground,3 and moreover, over 500,000 of East Timors population of 800,000 were either internally displaced, or else fled to nearby West Timor.4 In what was a continuation of the Indonesian armed forces policy of brutality towards the East Timorese people since Indonesias occupation of the former Portuguese colony in 1975, a decision had been taken by Indonesian military personnel (in conjunction with certain civil and police officials) to set up militia units composed of local personnel, in order to terrorise the Timorese population into voting for the autonomy option in the popular consultation on East Timors political future on 30 August, 1999.5 The severity and systematically-planned nature of the violence, together with the deliberate targeting of independence supporters constitutes substantial evidence that many cases of crimes against humanity were committed in East Timor during 1999.6 Condemnation of the violence was expressed by foreign governments, the Catholic Church, Non Government Organisations (NGOs), and the United Nations Security Council, which demanded the perpetrators be brought to justice.7 Accordingly, as part of the United Nations Transitional Administration in East Timor (UNTAET), the UN established the Serious Crimes Process, a hybrid justice system8 operating out of the Dili District Court, in order to prosecute serious crimes such as genocide, crimes against humanity and war crimes (whenever they were committed),

1 Throughout this thesis, East Timor will be used when referring to events prior to 2002, whilst

Timor-Leste will be used when referring to the period after 20 May 2002, when the Repblica Democrtica de Timor-Leste (Democratic Republic of East Timor) gained full independence. 2 Commission for Reception, Truth and Reconciliation in East Timor, Chega!: Final Report of the

Commission for Reception, Truth and Reconciliation in East Timor (CAVR), Dili, Timor-Leste: CAVR, 2005 (Chega), Part 7.2, 248. 3 James Dunn, East Timor: a rough passage to independence, Sydney: Longueville Books, 2003,

354; Megan Hirst and Howard Varney, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor, Available: http://www.ictj.org/images/content/1/2/121.pdf (March 20, 2006), 3. 4 Chega!, Part 7.5, 48; Hirst and Varney, 3; Harold Crouch, The TNI and East Timor policy, in Out

of the Ashes: Destruction and Reconstruction of East Timor, edited by James J. Fox and Dionisio Babo Soares, Canberra: ANU E Press, 2003, 141-167, 159-160; Kingsbury, 77. 5 James Dunn, Crimes against Humanity in East Timor, January to October 1999: Their Nature and

Causes, in Masters of Terror: Indonesias Military & Violence in East Timor in 1999, Canberra Papers on Strategy & Defence, No. 145, Canberra: Strategic and Defence Studies Centre, Australian National University, 2002, 60-98, 69. 6 Chega!, Part 8, 115.

7 United Nations Security Council Resolutions 1264 (15 September 1999) and 1272 (25 October

1999). 8 The Dili Special Panels for Serious Crimes (SPSC) were the first clear example of a hybrid

criminal tribunal, so-called because of the fact that both international and East Timorese judges sat on the panels (two international judges and one East Timorese judge per panel), both domestic and international law was applied by the court, and also due to the shared financial responsibility of the constituent state and the United Nations (Hirst and Varney, 5; Susan Harris-Rimmer and Effi Tomaras, Aftermath Timor Leste: reconciling competing notions of justice, Canberra: Parliament of Australia, 2006, 5; Taina Jrvinen, Human Rights and Post-Conflict Transitional Justice in East Timor, UPI Working Papers 47 (2004), 49). Hybrid panels are therefore a combination of purely domestic criminal justice processes, and international criminal tribunals (such as the International Criminal Tribunals for Rwanda and Yugoslavia) Jrvinen, 49-50.

together with murder, torture and sexual offences committed during 1999.9 In Jakarta, under significant international pressure, the Indonesian government agreed to establish an ad hoc Human Rights Court to try the Indonesian-based suspects. Unfortunately, neither judicial process was ultimately able to bring those perpetrators most responsible to justice.10 Despite considerable success in prosecuting lower-level militia members still residing in Timor-Leste, the Dili-based Serious Crimes Process found over 85 percent of its indictees out of its jurisdictional reach, residing in West Timor and elsewhere in Indonesia.11 Moreover, the Indonesian government had reneged on a Memorandum of Understanding signed with UNTAET in 2000 that created a procedure for the transfer of suspects between jurisdictions.12 Meanwhile, the Jakarta-based ad hoc Court, and its subsequent appeals processes, only succeeded in obtaining the conviction of a single accused: Eurico Guterres, an East Timorese militia leader. The proceedings in the ad hoc Court have therefore been widely denounced as a failure of justice, and have resulted in strident international criticism.13 Much has been said and written on the future of the justice process for serious crimes committed in what is now Timor-Leste, by those individuals and institutions that have the potential to shape the future of this new nation. Some protagonists (including Timor-Lestes Commission for Reception, Truth and Reconciliation, international NGOs, and the leaders of the East Timorese Catholic Church) have argued for a revisiting of the trials in Dili and Jakarta, or the establishment of a new domestic or international mechanism to bring the leading perpetrators to face trial. Others (including East Timorese President Xanana Gusmao and some foreign governments) have instead favoured non-adversarial solutions, being unwilling to compromise their economic and security ties with the Indonesian government, and also claiming that restorative justice measures14 would best serve Timor-Lestes

9 UNTAET Regulation 2000/15, Section 2. For the express purpose of dealing with the perpetrators

of so-called less-serious crimes (eg arson, minor assault, property destruction and looting) and restoring the dignity of their victims through a Community Reconciliation Process, as well as establishing the truth regarding human rights violations in East Timor between 1974 and 1999, UNTAET Regulation 2001/10 established an independent Commission for Reception, Truth and Reconciliation (Comisso de Acolhimento, Verdade e Reconciliaco de Timor Leste, or CAVR). The success of the Community Reconciliation Process in bringing together victims and perpetrators of lesser crimes and offering restitutionary solutions (see Zifcak, 54, and Chega!, Part 9, 46-47) means that this thesis shall only be concerned with the serious crimes committed in 1999. 10

Prafullachandra Bhagwati, Yozo Yokota, and Shaista Shameem, Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, UN Doc S/2005/458 (26 May 2005) (Commission of Experts Report), [359], [374]. 11

Ibid., [48], [80]; Hirst and Varney, 16. 12

Hirst and Varney, 6; Commission of Experts Report, [80]-[82]. 13

Harris-Rimmer and Tomaras, 7; David Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, Available: http://www.ictj.org/images/content/0/9/098.pdf (20 March 2006), ii; Commission of Experts Report, [375]; Above the law; Indonesias security forces, The Economist, 14 August 2004, 48; Roper and Barria, 533. 14

To aid in the reconstruction of a post-conflict society, restorative justice measures include truth commissions, reparations for victims, and amnesties for perpetrators, as opposed to retributive justice measures, which encompass criminal trials and lustration for perpetrators (Kiss, 1).

future development as an independent nation. Overall, a wide range of institutional solutions have been suggested. However, many of the models that have been proposed are mutually exclusive. Moreover, despite the large amount of writing on this subject, commentators have seldom considered whether a particular measure is feasible or not, both from a practical and theoretical perspective. As President Gusmao has stated, when we demand an international tribunal we do not ask ourselves if we can actually do that or if we are capable of that.15 This comment might be extended to every judicial and non-judicial solution that has been proposed. In this thesis, after Chapters One and Two (which describe the historical developments that have led to the current situation), I will address this deficiency in the available literature by considering solutions to the question of justice for serious crimes committed in Timor-Leste during 1999 within a normative framework. Chapter Three outlines the judicial and non-judicial models proposed as solutions by the major individual and institutional players in Timor-Lestes future development. Chapter Four considers the practical benefits and drawbacks of each option, employing an approach of deductive analysis to eliminate those models that have not proved practically feasible and effective in the current political climate. Finally, Chapter Five considers those remaining institutional models within a transitional justice framework, and also considers their legality under international law. In the conclusion, a final set of strategies is presented, constituting the best approach to now take in response to what is a vital issue facing the leaders of Timor-Leste, as they seek a peaceful reconstruction of their new nation and a prosperous future.

15

Xanana Gusmao, Considering a Policy of National Reconciliation, speech to the National Parliament, Dili, Timor-Leste, 21 October 2002, in Timor Lives! Speeches of Freedom and Independence, Alexandria, NSW: Longueville Media, 2005, 119.

Chapter One

History of the Conflict in Timor-Leste and Legal Responsibility for Serious Crimes Committed

during 1999

Introduction

The violent crimes committed in East Timor in 1999 should not been seen as a one-off conflict between rival local factions supporting and opposing independence from Indonesia. Instead, the overall historical context of the crimes must be considered, as evidence for the claim that senior Indonesian military, police and civil officials bear legal responsibility for the serious crimes that were committed during 1999, as well as the militia members themselves. The historical context shows that the violence committed bore many of the characteristics of the Indonesian military brutality witnessed in East Timor since Indonesias invasion in 1975, and moreover that the crimes of 1999 were systematically planned and executed. Accordingly, by analysing recent East Timorese history and the build-up to the events of 1999, the nature of the legal responsibility for those events becomes evident. End of Portuguese Colonialism: 1974-1975 Portugal became a colonial presence in East Timor from the sixteenth century16 and established a colonial capital in Dili in 1769.17 Following the Carnation Revolution during April 1974, all of Portugals colonies, including East Timor, were given the right to determine their own political future, including the option of full independence.18 A flimsy alliance for independent government between two of the three major East Timorese political parties that had recently emerged, Unio Democrtica de Timor19 (UDT) and Frente Revolucionria de Timor Leste Independente20 (Fretilin), soon fell apart,21 leading to a brief but bloody civil war after UDT had attempted a coup against the Fretilin-controlled government in August 1975.22 Fretilin secured victory in October 1975, and on 28 November proclaimed the independence of the Democratic Republic of Timor-Leste.23 However, Timor-Lestes political independence did not last for long. Indonesian Invasion and Occupation: 1975-1998 Following a covert destabilisation programme by the Indonesian military that had taken place throughout 1975,24 Indonesia invaded East Timor on 7 December 1975, citing Cold War security concerns and the maintenance of territorial integrity.25 The resulting condemnation from the UN Security Council was not heeded by the Indonesian government, mainly because of a low level of interest

16

Harris Rimmer and Tomaras, 1. 17

James J. Fox, Tracing the path, recounting the past: historical perspectives on Timor, in Out of the Ashes: Destruction and Reconstruction of East Timor, edited by James J. Fox and Dionisio Babo Soares, Canberra: ANU E Press, 2003, 1-28, 10. 18

Tomodok, 77. 19

Timorese Democratic Union. 20

Revolutionary Front of Independent East Timor. 21

Tomodok, 232. 22

Jrvinen, 12. 23

Ibid., 12. 24

Lloyd, 75. 25

Soares, 55; Lloyd, 76.

from the main international players in the region (the United States, United Kingdom, and Australia).26 By the end of 1975 Indonesia had deployed around 20,000 soldiers in East Timor.27 Then, on 31 May 1976, despite a lack of recognition of the invasion from the UN, and widespread international agreement that the invasion and occupation were illegal at international law,28 President Suharto officially incorporated East Timor as Indonesias 27th Province.29 The invasion and its immediate aftermath brought great devastation on the East Timorese. Casualty estimates range between 60,000 and 100,000 lives lost during the first year of the occupation alone: mainly from disease and starvation, but also as a result of indiscriminate killings.30 The overall legacy of the 24 year occupation was equally as brutal: the East Timorese Commission for Reception, Truth and Reconciliations (CAVR)31 conservative estimate is that around 121,600 civilians died as a result of Indonesian policies towards East Timor.32 Well known mass killings such as those in Lacluta (1981), Kraras (1983), and Santa Cruz (1991) contributed to these figures,33 although their exposure in the Western media told only part of the full story of human-rights abuses. The overall picture conveyed is that Angkatan Bersenjata Republic Indonesia (the Indonesian Armed Forces, or ABRI)34 had little regard for the human rights of East Timorese during the Indonesian occupation, and that their brutal actions were condoned not only by the Indonesian government, but by many western governments, who continued to provide significant levels of military, diplomatic and economic support to Indonesia over the period of the occupation.35 The exhaustively-researched CAVR Report36 concluded that Indonesian military personnel were guilty of war crimes and crimes against humanity as a result their actions over this period.37 The Fall of the New Order

26

Dunn, Crimes Against Humanity, 64. 27


Ibid.; Australia was the only nation to unilaterally recognise Indonesias invasion. 29

Tomodok, 356. 30


See Introduction, note 9. 32

This figure includes approximately 103,000 deaths due to hunger and illness and 18,600 deaths due to killings by force, 70 percent of which were committed by the Indonesian armed forces or their Timorese auxiliaries (Chega!, Part 6, 10, 13); however, the CAVRs upper estimate of unnatural deaths sustained between 1975-1999 in East Timor is 183,000 (Chega!, Part 6, 13); other estimates of the total number of deaths due to Indonesian policies have ranged between 120,000 and 230,000 (Harris Rimmer and Tomaras, 1). 33

Nevins, 213; Subroto, 236. 34

During Suhartos Orde Baru (New Order) regime, the Indonesian armed forces, which included the police force, were referred to as ABRI (Angkatan Bersenjata Republic Indonesia) (Crouch, 141, note 1). After the fall of the New Order in 1998, the police force was separated from ABRI, and the remaining three arms of ABRI became known as the Tentara Nasional Indonesia (Indonesian National Army, or TNI). 35

Lao Hamutuk, Lao Hamutuk on Reconciliation, Justice, and Reconstruction. 36


See Chega!, Part 7.5, 47-48.

Pro-independence demonstrations and activism in East Timor significantly increased during the summer of 1998.38 President Suhartos resignation during May of that year gave independence supporters new impetus, and vigorous opposition to a special autonomy package proposed by new President BJ Habibie was being shown in the streets of Dili over this period.39 At a meeting attended by TNI officers and prominent East Timorese pro-autonomy activists on the 10th or 12th of August 1998, a campaign was officially launched to create pro-Indonesian militias.40 In the following months, rumours began to circulate in East Timor that paramilitary groups were being mobilised for use against supporters of independence.41 Accordingly, when President Habibie made a dramatic policy reversal and announced on 27 January 1999 that he would instead allow a UN-supervised popular consultation on East Timors political future to take place,42 the foundations for a campaign of violence by autonomy supporters had already been laid. Setting up the Militias

Militias were not a new concept in East Timor in 1999. The existence of local paramilitary units dates back to the Portuguese era,43 and even more significantly, training and deployment of East Timorese paramilitary groups was used by the Indonesian military to pave the way for the December 1975 invasion.44 During the late 1970s, East Timorese were again deployed as part of Hansip (civil defence) units that replicated those groups found throughout the Indonesian archipelago. Moreover, as recently as the 1980s, para-military forces were created by the TNI to oppose not only Falintil,45 but also the growing phenomenon of passive

38

Hirst and Varney, 2; for example, three weeks after President Suhartos resignation, over 15,000 students staged a demonstration in Dili, demanding the release of Xanana Gusmao from prison in Indonesia, and for the holding of a referendum on East Timors political future (Dunn, East Timor, 341). 39

Robinson, Peoples war, 274; President Habibie and his advisors saw a new proposal for autonomy as a means of removing the East Timor issue from the international agenda and to placate independence supporters, at a time when international attention was sharply focussed on developments within Indonesia (Dunn, East Timor, 341). 40

Dunn, Crimes Against Humanity (at 69) lists the attendees at that meeting as Major General Adam Damiri (Chief of the Udayana Regional Military Command, which encompassed East Timor (Cohen, 68)), Colonel Tono Suratman (Military Commander of East Timor (Cohen, 68)), Joo Tavares (the first commander of the Halilintar militia in 1975), Eurico Guterres (the leader of Garda Paksi, a pro-Indonesian street gang, from 1995-1998 (Robinson, Peoples war, 312)) and Cancio de Carvalho (a former civil servant in the Justice Department who went on to become the leader of the Mahidi militia group (van Klinken and Bourchier, 116, 118)). Integration was to be protected at all costs, according to TNI officers Damiri and Suratman. Dunn (East Timor, 342) also argues that the preparatory planning for the militia launch was undertaken by Indonesian Generals Syafrei Syamsuddin and Zakky Anwar Makarim from July 1998. 41

Robinson, Peoples war, 274. 42

The ballot paper was to read Do you accept the proposed special autonomy for East Timor within the Unitary State of the Republic of Indonesia? or Do you reject the proposed special autonomy for East Timor, leading to East Timors separation from Indonesia? (Chega!, Part 3, 135). 43


See Dunn, Crimes Against Humanity, 66-67. 45

Falintil (Forcas Armadas de Timor Leste Armed Forces of Timor Leste) was the armed wing of the resistance movement (Soares, 57).

resistance.46 It is clear then that ABRI/TNI had a long history of supporting militia units in aid of its operations.47 A collective memory of paramilitary activity had thereby been established that could be called on by senior TNI officials in their activation of the 1999 militia.48 For instance, a number of the groups that perpetrated the violence in 1999 had been re-activated from the remnants of older battalions, and their old tactics merely re-adopted.49 Two days after Habibies announcement that a ballot would go ahead, a Crisis Team on East Timor was established within Indonesian military circles, in order to wage a renewed campaign of violence against pro-independence forces, civilian and military. Heading the team was Major-General Zacky Anwar Makarim, who had resigned from his position as the chief of Indonesian military intelligence in order to take up the role.50 The formation and reactivation of militia groups to oppose independence conveniently functioned as an illusion for the TNI-dominated team. Facilitating violent resistance to independence was designed to portray to the world that it was the will of the East Timorese people to remain part of the Indonesian state.51 Moreover, the portrayal of East Timor as a violence-ridden province (especially if Falintil were to retaliate) would enable the Indonesian government to assert that an internationally-supervised referendum would fail.52 Finally, there is some speculation that the violent attacks planned on independence supporters may also have been intended to serve as a lesson to other Indonesian provinces where there exist separatist movements, particularly Aceh and West Papua.53 For these purposes, Zacky Anwar Makarim and his team formed militia units throughout the thirteen districts of East Timor, each group having a commander chosen by TNI officers.54 The overall commander of the militia umbrella body (Pasukan Perjuangan Integrasi: Integration Struggle Force), Joo Tavares, was also appointed by TNI officers.55 The weapons used by the militia groups were predominantly home-made (in order to portray an independence from the TNI), however some modern weapons were later transferred to militia units by Indonesian soldiers after militia members had handed over their original weapons as part of reconciliation agreements.56 Apart from the TNIs role, it is also clear

46



Dunn, East Timor, 342. Supreme Commander of the Militias in 1999, Joo Tavares, was to later insist that the militias had never needed any military training, as virtually everyone in the territory knew how to handle a gun (Robinson, Peoples war, 278). 49

Robinson, Peoples war, 301, 312-313. He lists those older groups as Rajawali, Makikit, Saka, Sera, Partisan, Combat, 1959/75 Junior, Team Alfa and Railakang. See also Soares, 61. 50

Kingsbury, 70; Chega!, Part 8, 114. 51

Dunn, Crimes Against Humanity, 69; Robinson, Peoples war, 275. 52

Soares, 65. 53

Kingsbury, 77; Susan Harris-Rimmer, interview by author, Canberra, 27 April 2006. 54

Dunn, Crimes Against Humanity, 70; Kingsbury, 71; see Soares (at 63), for a full list of the new militia groups established in 1999 and their leaders. 55


Crouch, 152; Kingsbury, 72.

that Indonesian Police and civil officials played a large part in recruiting, supervising, and financing the pro-integration militia groups.57 The 6000-strong membership of the militias initially consisted of disaffected youth, those older members who had fought against Falintil at some stage after 1975, and those loyal to prominent East Timorese who had prospered as a consequence of integration.58 They were joined by TNI members from West Timor dressed as locals, and former members of criminal gangs.59 Later however, when the violence began, recruitment became more and more difficult. In some areas, a process of unofficial conscription took place with young men compelled to join their local grouping for fear of punishment if they failed to do so.60 Hence a significant number of the militia personnel were acting under duress. Intimidation and Violence before the Ballot: January August 1999

Following President Habibies announcement that a popular consultation would take place in January 1999, the first wave of violence began.61 Scores of people were reported murdered in February and March 1999 while tens of thousands were made homeless. However, this first show of force by the militia was only a shadow of things to come. During April, the shelters that the homeless turned to, including churches, were the sites of some of the most gruesome massacres of 1999. The militias launch of Operasi Sapu Jagad (Operation Clean Sweep) in the early part of 1999 resulted in the Liquia church massacre62 and the attack on the home of independence activist Manuel Carrascalo.63 Against this background, on 5 May an official agreement between Indonesia and Portugal, under the supervision of the UN, was reached in New York, detailing the arrangements for the ballot.64 Significantly, according to the Agreement, Indonesia was to provide security so that the plebiscite could go ahead.65

57

Crouch, 151. The Indonesian Human Rights Commissions 2000 investigation into human rights abuses in Timor-Leste listed the Governor of East Timor at the time of the ballot, Abilio Soares, the Regent of Dili, Domingos Soares, as well as the Regents of Covalima, Liquia, Bobonaro and Lospalos as crimes against humanity suspects (KOMNASHAM, [56], [73]. Kingsbury (at 71) argues that the East Timorese component of the militias was hired by local bupati (regents). 58

Robinson, Peoples war, 277-278; Kingsbury, 71. 59


Dunn, Crimes Against Humanity, 70, 79. 61

Robinson, Peoples war, 274; however, Dunn, East Timor, 346, argues that attacks bearing militia characteristics had previously been carried out on independence supporters in December 1998, and on 3 January 1999. 62

On 5 April, militia members shot and hacked to death over 40 unarmed civilians who were seeking shelter in a churchyard in Liquia (Soares, 64). 63

On the 17 April, following a militia rally attended by more than 5000 people outside the Indonesian Governors office, members of the Aitarak and Besi Merah Putih militia groups attacked unarmed refugees sheltering within the Dili residence of Manuel Carrascalo. Manuelito, Manuels son, was killed along with 14 other East Timorese (KOMNASHAM, [37]). 64

Dunn, East Timor, 347. 65

Chega!, Part 8, 96. The agreement charged Indonesian security forces with the responsibility for maintaining peace and security in East Timor in order to ensure that the popular consultation is carried out in a fair and peaceful way in an atmosphere free of intimidation, violence or interference from any side (Agreement between The Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, 2062 UNTS 8, Article 3).

Although the severity of the violence declined slightly during May with the arrival of UNAMET (United Nations Assistance Mission to East Timor) staff and international observers,66 it was during this period that senior TNI officers, now realising that the integration option was not favoured by a majority of the East Timorese population, initially planned what they would do if voters were to reject the Indonesian governments offer of autonomy. During this stage of planning, the TNI was able to downplay the violence in April, claiming it was the result of a purely civil conflict amongst East Timorese,67 whilst also covertly urging the continuation of the campaign of intimidation and harassment of independence supporters right up until the ballot.68 The result of discussions between military leaders was that plans for a pembumihangusan (scorched earth operation) were formulated, with the intention of leaving East Timor in ruins and largely devoid of population.69 Scorched Earth Operation after the Ballot The ballot was held on 30 August 1999, and was followed by a number of minor incidents of political violence.70 On 4 September the UN announced that 78.5 percent of voters had rejected Indonesias offer of autonomy.71 This was the trigger for the most serious outbreak of violence, which continued until the end of September. A summary of the most serious crimes perpetrated by the militias against civilians after the popular consultation are as follows:

the arbitrary killing of at least 560 mainly unarmed people (contributing to a total count of between 1400 and 1500 killings by pro-integration forces for the whole of 1999);72

thousands of cases of serious injury;73

instances of torture and ill-treatment, rape, sexual slavery and kidnapping, including approximately 182 cases of gender-based human rights violations;74

the intentional destruction of 74 percent of the houses and buildings in East Timor through arson and ransacking;75 and

66

Robinson, Peoples war, 274; however, international observers still reported some incidents of political violence designed to intimidate those East Timorese who had enlisted to vote after the opening of registration on 16 July (Harris Rimmer and Tomaras, 2). Soares (at 64) also reports that some attacks during this period were directed not only at civilians, but at the growing number of international NGO and humanitarian personnel helping preparations for the ballot. For example, seven UN staff members were injured in a militia attack in Maliana on 29 June (Dunn, East Timor, 349). 67


Dunn, East Timor, 349. 69

Ibid., 350: two codenames were used for this operation: Operasi Guntur and Operasi Wiradharma. 70

Chega!, Part 3, 143-144. 71

Soares, 53, 70. 72

Chega!, Part 7.2, 245, 248. 73

Ibid., Part 7.5, 48. 74

Dunn, Crimes Against Humanity, 72; KOMNASHAM, [60].

the intentional destruction of public infrastructure, including schools, clinics and community centres76

In addition to the many violent attacks on individuals, the post-ballot period also witnessed a massive displacement of persons. Around 250,000 East Timorese are believed to have travelled to West Timor. Some who were integration supporters left voluntarily, but most were forced to go against their will following threats of violence.77 Approximately 300,000 more people became internally displaced within East Timor as they fled into the mountains.78 They were later to face food and medical shortages until the arrival of UN relief later in September.79 Finally, after two weeks of diplomatic negotiations that resulted in Indonesias increasing international isolation, President Habibie telephoned the UN Secretary-General to ask for assistance in restoring peace and security to East Timor. Thereafter, the passing of UN Security Council Resolution 1264 enabled INTERFET, an Australian-led international peacekeeping force, to restore law and order in East Timor.80 By the end of September the force totalled 4000 soldiers, and had largely succeeded in its mission.81 International Crimes Committed in 1999

The acts of violence committed in East Timor during 1999 encompassed serious breaches of human rights and humanitarian law. Based on the events described earlier in this chapter, at the very minimum, numerous breaches of the International Bill of Rights82 took place in East Timor throughout 1999.83 Did

75

Dunn, East Timor, 354; Hirst and Varney, 3. 76

Chega!, Part 7.5, 48. 77

Ibid., Part 7.5, 48; Hirst and Varney, 3; Crouch, 159-160. 78

Ibid., Part 7.5, 48. The total population of East Timor at the time was only around 800,000 (Kingsbury, 77). 79

Dunn, Crimes Against Humanity, 63; Annemarie Devereux, Accountability for human rights abuses in East Timor, in Guns and Ballot Boxes: East Timors vote for independence, edited by Damien Kingsbury, Melbourne: Monash Asia Institute, 2000, 135-155, 141, also states that militia members blocked the provision of emergency supplies of food, water and medical equipment to displaced persons in temporary camps. 80

Chega!, Part 3, 150-151. 81

Jrvinen, 17. 82

The International Bill of Rights consists of the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), and the International Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). 83

Devereux (at 141) lists, at a minimum, breaches of the rights to life (ICCPR, Article 6), liberty and security of person (ICCPR, Article 9), freedom of movement (ICCPR, Article 12), the rights not to be arbitrarily deprived of property (UDHR, Article 17), not to be subjected to arbitrary or unlawful interference with ones privacy, family, home or correspondence (ICCPR, Article 17), the rights to hold opinions (ICCPR, Article 19), freedom of expression (ICCPR, Article 19(2)), equality before the law (ICCPR, Article 26), an adequate standard of living (ICESCR, Article 11), the right not to be tortured (ICCPR, Article 7), and in all probability, breaches of the rights to work (ICESCR, Article 6), education (ICESCR, Article 13) and health (ICESCR, Article 12). The KOMNASHAM Report (at [22]) states that there were violations of the rights to life (ICCPR, Article 6), personal integrity and

these actions also constitute serious international crimes: crimes against humanity, genocide, and war crimes (these being crimes that have attained jus cogens status)?84 A crime against humanity requires that: 1) murder, extermination, enslavement, deportation, imprisonment or deprivation of liberty, torture, sexual violence (including rape), persecution, abduction, apartheid or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health be committed; and 2) those acts come as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.85 As described above, the violent attacks committed in 1999 clearly contain examples of the actions listed in the first element of crimes against humanity. For the second element, a vast amount of available evidence points to the killings and other violence having been carried out systematically [and] deliberately directed against the opponents of integration with Indonesia,86 rather than constituting an unorganised, sporadic series of incidents. War crimes, unlike crimes against humanity,87 can only be committed in times of armed conflict.88 From the definition of armed conflict enunciated by the International Criminal Tribunal for the Former Yugoslavia, it is apparent that the resort to arms must be mutual.89 Accordingly, in the East Timorese context, it is difficult to argue that the crimes committed in 1999 took place during an armed conflict, due to the unilateral nature of the violence perpetrated by militia

liberty (ICCPR, Article 9), freedom of movement (ICCPR, Article 12), and property (UDHR, Article 17). 84

Jus cogens norms are rules of international law that have attained a peremptory status, and hence cannot be derogated from or contracted out of by States (Donald K. Anton, Penelope Mathew, and Wayne Morgan, International Law: Cases and Materials, Oxford and New York: Oxford University Press, 2005, 233). On genocide, crimes against humanity and war crimes being part of this group, see M. Cherif Bassiouni, Accountability for International Crimes and Serious Violations of Fundamental Human Rights: International Crimes: Jus Cogens and Obligation Erga Omnes, Law and Contemporary Problems 59 (1996): 63, 68: The legal literature discloses that the following international crimes are jus cogens: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture (emphasis added); see also Restatement (Third): The Foreign Relations Law of the United States, [702, n], and Amnesty International and Judicial System Monitoring Programme, Justice for Timor-Leste: The Way Forward, Available: http://web.amnesty.org/library/print/ENGASA210062004 (15 May 2006), [11.5]. 85

Rome Statute, Article 7. 86

Dunn, East Timor, 353; this point is also reiterated by Robinson, East Timor 1999, 248; Chega!, Part 7.5, 48, Part 8, 115, and KOMNASHAM, [21], [60]. 87

Devereux, 136, note 5. 88

Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Article 2; Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Article 2; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 2; Geneva Convention relative to the treatment of prisoners of war. Opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Article 2; see also Rome Statute, Article 8. 89

Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), [70]; see also Devereux, 146.

personnel.90 Xanana Gusmaos directive from his prison cell in Jakarta, imploring Falintil forces and the general population not to fight back against the militias,91 is evidence of this. If a long-term perspective is taken, analysing violent incidents right back to 1974-1975 (as the CAVR achieved), a conclusion that war crimes were committed in East Timor is possible.92 However, it is doubtful that the same findings would arise merely by looking at the events of 1999.93 Finally, the commission of genocide requires an act designed to destroy, in whole or in part, a national, ethnical, racial or religious group.94 If it can be demonstrated that the militias actions were designed to destroy the East Timorese as a group per-se, then a finding of genocide might ensue. However, it is arguable that most of the killings and other violent acts evinced a political motive, as the attacks were directed against independence supporters (and foreign staff of international agencies).95 Such acts would probably not constitute genocide.96 It follows that any attempted prosecution of the crimes committed in 1999 in East Timor on the basis that they constituted crimes against humanity (which may be committed for political reasons) is most likely to be successful.97 Legal Responsibility for Crimes Against Humanity

So who is legally responsible for the commission of such crimes against humanity? It is clear that the East Timorese militia-members themselves, the trigger-pullers, are individually responsible for breaches of international criminal law, as the actual commissioners of the crimes.98 The pressing question however is whether responsibility can be attributed higher up the chain of command of the Indonesian military, police and civil administration? Individual responsibility, as defined in the Rome Statute, applies to individuals who commit, order, solicit, induce, aid, abet, or otherwise contribute to the commission or attempted commission of a crime.99 The relevant actions and omissions of potentially culpable TNI soldiers and officers, together with Indonesian police and civil officials consisted of:

90

Devereux, 146; Chega!, Part 7.5, 48. 91

Chega!, Part 3, 129. 92

Devereux, 146-147; see Indonesian Invasion and Occupation: 1975-1998 (above). 93

Note that the Serious Crimes Unit (set up to prosecute the perpetrators of the 1999 crimes in East Timor) reached the same conclusion: see Chapter Two, note 167. 94

Rome Statute, Article 6. The relevant actions can include killing; causing serious bodily or mental harm; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction; birth prevention, and forcibly transferring children to another group. 95

Devereux, 149. 96

KOMNASHAM, [62]. 97

Devereux, 149. 98

Rome Statute, Article 25(3)(a); that there exists individual responsibility for international crimes committed in Timor-Leste in 1999 was reiterated in UN Security Council Resolution 1264 (15 September 1999). 99

Ibid., Article 25(3).

planning the campaign of pre-ballot intimidation and harassment of independence supporters and the voting public;100

creating, recruiting, financing, arming and training the militia groups;101

making no coordinated attempt to prevent violent attacks taking place, either before or after the ballot, and in some cases actively commanding or encouraging violent actions (especially in border areas);102

some TNI soldiers, particularly those of East Timorese origin, actually participating in the violence;103 and

playing a major participatory and commanding role in the systematic forced deportation of many thousands of civilians following the ballot.104

Therefore, based on the Rome Statute definition, individual responsibility attaches to those lower-ranking TNI members who directly committed, or ordered the commission of systematically-planned crimes before and after the ballot.105 Moreover, those Indonesian military, police and civilian officials who managed and planned the violence would arguably bear individual criminal responsibility.106 In addition to individual responsibility, military, police, and civilian officials may also be liable for the commission of international crimes by their subordinates by virtue of the doctrine of command responsibility. According to the Rome Statute, command responsibility requires proof 1) of a superior-subordinate relationship; 2) that the superior either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, and 3) that the superior failed to take all necessary and reasonable measures within his or her power to prevent, stop and punish the perpetrators.107

100

See Chega!, Part 8, 100-101, for specific examples. 101

Ibid., Part 8, 99; Dunn, East Timor, 342; see Chega!, Part 8, 105-107, for specific examples of TNI, Police and civilian officials arming, training, and financing militia groups. 102

Chega!, Part 8, 103; Crouch, 161; Dunn, East Timor, 352. 103

Crouch, 161; KOMNASHAM, [56]. In many cases there was a significant overlap in membership between TNI units and militia units: see Chega!, Part 8, 103, for specific examples. 104

Crouch, 161; Dunn, Crimes Against Humanity, 66; allegedly commanding the mass deportation were Kopassus (Indonesian Special Forces) Officers, with TNI Major Generals Zakky Anwar Makarim and Adam Damiri also exercising some degree of command. 105

Robinson, East Timor 1999, 250. For specific examples, see Chega!, Part 8, 98-99. Overall, testimony detailing well over 2000 individual crimes committed by TNI and militia members acting together as perpetrators was provided to the CAVR. These crimes included 761 cases of illegal killings, 968 cases of torture and mistreatment, 883 cases of arbitrary detention, 553 cases of property damage and 11 cases of sexual crimes (Chega!, Part 8, 104). 106

Robinson, East Timor 1999, 251. Based upon the Rome Statute (Article 25) definition of individual responsibility, together with the judicial pronouncements on the doctrine in the Prosecutor v Tadic (Judgment) decision in the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia, Robinson concludes that individual criminal responsibility arguably attaches to any individual who 1) helped to establish the militias and to recruit their members; 2) made public statements in support of the militias; 3) granted the militias legal and political recognition; 3) provided militiamen with military training and guidance; 4) conducted joint combat operations with militia groups; 5) provided militiamen with weapons and/or ammunition, and 6) provided the militias with financial and/or material support. For Robinsons full list of managers and planners of the militia operations, see Robinson, East Timor 1999, 251-252. 107

Rome Statute, Article 28.

For the first element, effective responsibility for the command of TNI operations in East Timor rested with General Wiranto, the Indonesian Armed Forces Commander and Minister of Defence and Security.108 Additionally, a number of senior army officers at the Armys headquarters in Jakarta exercised command authority over their junior troops in East Timor.109 Local police chiefs in East Timor, the provincial governor, local bupati (regents), and Indonesian cabinet ministers directly involved in shaping Indonesias East Timor policy arguably also exercised varying levels of command over the TNI and militia groups in East Timor.110 The second element of command responsibility also appears to be satisfied, as most of the relevant superiors undoubtedly knew of the nature and extent of the violence taking place in East Timor.111 For example, General Wiranto made frequent visits to East Timor during 1998 and 1999, where he was informed by military liaison officers and UNAMET officials of the crimes taking place.112 Moreover, other high-ranking TNI, police, and civil officials received regular written and oral reports from within the Indonesian militarys own hierarchical structure and from UNAMET officials, other Indonesian sources, foreign governments and international and domestic NGOs of the violence throughout 1999.113 It is implausible to suggest that senior TNI, police and civilian officials, even if based in Jakarta, did not know what was going on. The final element, that the authorities failed to prevent, halt and punish the commission of crimes against humanity, also appears to be satisfied. As discussed above, far from discouraging violent attacks, to the contrary, many TNI, police and civil officials actually promoted the commission of many of these crimes. Significantly, if the will to halt the violence had existed, appropriate measures could have been taken.114 For example, when General Wiranto met with UNAMETs Ian Martin on 7 July 1999, he stated that if Falintil was willing to surrender its weapons to Indonesian police, he could assure that the militias would be similarly disarmed within two days.115 A number of other statements made by General Wiranto and Colonel Tono Suratman116 also evince their conviction that they could have halted

108

Robinson, East Timor 1999, 254. 109

See Robinson, East Timor 1999, 255, for a full list of suspects. 110

Chega!, Part 8, 112-113; Robinson, East Timor 1999, 255-257; the only two relevant changes in command responsibility during 1999 came first on 4 September, when the TNI assumed control of all security operations in East Timor, superseding the role of police and civil authorities. Second, on 7 September, President Habibie declared Martial Law in East Timor. Thereafter, all military, police and civilian operations came directly under Martial Law commander Major General Kiki Syahnakri, together with General Wiranto and President Habibie himself. 111


This allegation is detailed in the Wiranto et al indictment issued by the Serious Crimes Unit in February 2003 (see Chapter Two, Flaws in the Proceedings: Dili). Similar allegations are made of Wirantos co-accused: Major General Zacky Anwar Makarim, Major General Kiki Syahnakri, Major General Adam Damiri, Colonel Tono Suratman, Colonel Noer Muis and Lieutenant Colonel Jajat Sudrajat (Robinson, East Timor 1999, 259). 113

Robinson, East Timor 1999, 259; see Chega!, Part 8, 109-110, 113, for more specific examples. 114


Ibid. 116

See note 40 (above).

the violence if they chose to do so.117 Taking into account that by August 1999 there were over 17,000 regular TNI troops stationed in East Timor, and moreover 6,500 police on active duty, it would be a fallacy to suggest otherwise.118 Finally, there was an almost total failure by the TNI leadership to discipline their forces for the commission of such serious crimes, despite significant evidence of their direct involvement. Soldiers and officers were not held legally accountable on an internal or external basis. Instead a number of senior military officials were even promoted for their services in East Timor.119 Conclusion The tragic violence witnessed in East Timor during 1999 demands a search to establish legal responsibility for the perpetrators. Overall, legal responsibility for the crimes against humanity allegedly committed in East Timor during 1999 extends to not only the militia personnel who actually carried out violent attacks, but also to those TNI, Indonesian police and civil and administrative officials who contributed to the violence by ordering, aiding and abetting, and inciting the attacks. Further, those high-ranking officials who failed to prevent, halt and punish violent actions by the individuals directly involved are liable on the basis of command responsibility. The violence committed in 1999 was not the result of a civil war between East Timorese factions, as has been claimed in Indonesia,120 but was a systematically planned operation designed to intimidate and punish those East Timorese who supported independence. It was a continuation of the military policies ruthlessly implemented throughout the Indonesian occupation.

117

See Chega!, Part 8, 107-108, for specific examples. 118

Ibid., Part 8, 108-109. 119

See Chega!, Part 8, 111, for specific examples. 120

See Muladi, 17-21.

Chapter Two

Judicial Responses to Serious Crimes Committed during 1999

Introduction: Setting up Judicial Mechanisms to Respond to the Crimes Amongst UN member States, it was widely agreed that the violence committed in East Timor during 1999 included many examples of severe violations of international human rights and humanitarian law.121 UN Security Council Resolutions 1264 (15 September 1999) and 1272 (25 October 1999) called for the perpetrators of such violations to be brought to justice.122 Accordingly, after the establishment of UNTAET as the executive and legislative authority in East Timor from 25 October 1999,123 a number of international teams conducted investigations into the violence. Foremost amongst these was the International Commission of Inquiry on East Timor (ICIET), established by a resolution of the UN Human Rights Commission.124 In its January 2000 report the Commission recommended the establishment of an ad hoc international criminal tribunal to try the accused. However, reservations amongst potential donor nations regarding the costs of an international tribunal similar to those established for Rwanda and Yugoslavia, together with assurances made to the UN Secretary General by Indonesian President Abdurrahman Wahid that perpetrators residing in Indonesia would be brought to justice, precluded the formation of such an international judicial mechanism.125 Discussion within the UN resulted in an agreement to set up a specially-constituted hybrid criminal justice mechanism in East Timor.126 Accordingly, in June 2000 the Serious Crimes Unit (SCU) was established to conduct criminal investigations within a UN civilian police framework127 and the Special Panels for Serious Crimes (SPSC) were established to function as the judicial bodies where perpetrators of serious crimes would be tried, operating out of the Dili District Court.128 The SCU and SPSC together possessed unlimited temporal mandates to investigate and prosecute genocide, crimes against humanity and war crimes, and additionally possessed jurisdiction over cases of murder, sexual offences and torture occurring

121

Herbert D. Bowman, Letting the Big Fish get Away: the United Nations Justice Effort in East Timor, Emory International Law Review 18 (2004): 371, 378-379; Erica Harper, Delivering Justice in the Wake of Mass Violence: New Approaches to Transitional Justice, Journal of Conflict & Security Law 10 (2005): 149, 153-154; Roper and Barria, 525. 122

UN Security Council Resolution 1264, [1]; UN Security Council Resolution 1272, [16]. 123

UNTAET was created by UN Security Council Resolution 1272 (25 October 1999), six days after the Indonesian Parliament had ratified the result of the popular consultation (Jrvinen, 18). 124

Ibid., 41-42; the International Commission of Inquiry on East Timor (an independent body) was established following the earlier report of the three Special Rapporteurs of the UN Commission on Human Rights, based on their November 1999 mission, in which they outlined serious violations of human rights in East Timor, and also called for an international criminal tribunal to be established if Indonesia did not bring the culprits to justice (Robinson, East Timor 1999, 271). 125

Bowman, 381; Jrvinen, 44; Letter from the Minister of Foreign Affairs of Indonesia to the Secretary General. 126


Jrvinen, 47; the SCU came under the leadership of a UN Deputy General Prosecutor for Serious Crimes, who operated under the authority of the Prosecutor-General for Timor-Leste after independence in May 2002 (Hirst and Varney, 5). 128

Jrvinen, 49; the SPSC consisted of two Trial Courts and an Appeal Court (Bowman, 389-390). The SCU and SPSC were authorised by UNTAET Regulation 2000/15. The entire process will henceforth be referred to as the Serious Crimes process, or regime.

between 1 January and 25 October 1999.129 Following full independence for Timor-Leste on 20 May 2002, the SCU and SPSC operated within the financial and logistical framework of the UNs successor mission: the United Nations Mission of Support in East Timor (UNMISET130), despite their formal integration within the East Timorese court structure by that stage.131 The Special Panels ceased to operate altogether when the UN terminated its financial and logistical support for the Serious Crimes process in May 2005, in the context of an overall downgrading of its mission in Timor.132 Only the perpetrators of serious crimes were to be brought to trial within the Special Panels. For the express purpose of making accountable the perpetrators of so-called less-serious crimes,133 restoring the dignity of their victims through Community Reconciliation Processes, as well as establishing the truth regarding human rights violations in East Timor between 1974 and 1999, UNTAET established an independent Commission for Reception, Truth and Reconciliation.134 The CAVRs findings and recommendations, released publicly in January 2006, will be considered in Chapter Three. Parallel investigations into the 1999 violence were conducted by the Indonesian National Human Rights Commission (KOMNASHAM135) from September 1999 to January 2000, by way of a specially established team: the Commission of Inquiry into Human Rights Violations in East Timor (KPP-HAM136). The Commission was mandated to investigate human rights violations in East Timor from 1 January to 25 October 1999.137 The KPP-HAM report found that Indonesian officials within the civil bureaucracy were responsible for financing and supporting certain militia groups and moreover that the TNI and Indonesian Police had deliberately assisted the militias in perpetrating a systematic and planned campaign of violence, comprising many instances of crimes against humanity.138 The report also

129

UNTAET Regulation 2000/15, Section 2. 130

UNMISET was established by UN Security Council Resolution 1410 (17 May 2002). 131

Jrvinen, 53. 132

See UN Security Council Resolutions 1543 (14 May 2004) and 1573 (16 November 2004). Although the UN Secretary-General recommended in July 2006 that the investigative function of the SCU be resumed within the framework of UNMIT (United Nations Integrated Mission in Timor-Leste the new UN mission to Timor-Leste), such a move would not include the re-establishment of the SCUs prosecutorial component (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]). 133

The category of less-serious crimes did not include blood crimes (such as murder, rape and torture), and instead consisted of acts such as theft, minor assault, arson, the killing of livestock or the destruction of crops and additionally non-criminal actions that were considered to have caused harm to communities, such as collaboration or secretly providing information, which led to violations being committed (Chega!, Part 9, 11-12). 134

Stahn, 953; see Introduction, note 9. 135

Komisi Nasional Hak Asasi Manusia. 136

Komisi Penyelidik Pelanggaran HAM di Timor Timur. 137

KOMNASHAM, [6]; the KPP-HAM report looked at 13 specific incidents in detail, as well as several general categories of human rights abuses: systematic and mass murders; torture and ill treatment, enforced disappearances, gender-based violence, forced displacement of civilians and the scorched-earth campaign (at [22]-[28], [32]-[51]). 138

Ibid., [21], [63]; a full list of civil, military and police crimes against humanity suspects is found at [73].

implicated high-level Indonesian military officials who allegedly knew about the violence, but failed to prevent or halt its occurrence.139 In March 2001, in response to recommendations outlined in the KPP-HAM report, and under significant international pressure, President Wahid issued Presidential Decree No.53/2001, establishing an ad hoc Human Rights Court on East Timor.140 The ad hoc Court trials were completed in 2004, and the final appeal from the ad hoc Court to the Indonesian Supreme Court was completed in March 2006.141 Whilst it was originally tacitly intended that the Jakarta ad hoc Human Rights Court would be the means to prosecute suspects residing in Indonesia, whereas the Special Panels would try East Timorese nationals,142 a Memorandum of Understanding (MOU) between Indonesia and UNTAET was nonetheless concluded on 5-6 April 2000, putting in place a framework for cross-border cooperation regarding judicial, legal and human-rights matters.143 The MOU explicitly outlined arrangements for evidence-sharing, the service of legal documents, powers of arrest, search and seizure, and most importantly the transfer of suspects between the two jurisdictions on request, in order to enforce arrest warrants.144 However, no formal extradition agreement has ever been signed between Indonesia and Timor-Leste.145 Serious Crimes Unit and Dili Special Panels for Serious Crimes: Summary of Proceedings

The SCU began issuing indictments in December 2000.146 By the cessation of the Serious Crimes Process in May 2005, as a result of its investigative work, the SCU had issued 95 indictments against 440 accused persons.147 The indictments issued were based upon a prosecution strategy of pursuing ten priority cases, so selected because of the number of victims involved, the seriousness and political significance of the crimes, and ease of access to evidence.148 These indictments

139

Ibid., [56]. 140

Indonesian Law 26/2000 established four permanent Human Rights Courts for cases occurring after the legislation, and allowed the creation of ad hoc Human Rights Courts for cases which occurred before November 2000. In August 2001, newly-elected President Megawati Sukarnoputri further issued Presidential Decree No.96/2001, extending the jurisdiction of the ad hoc Court from cases that took place solely after the plebiscite in September, to include incidents that occurred during April 1999. 141

Siboro. 142

Jrvinen, 52. 143

See Memorandum of Understanding between the Republic of Indonesia and the United Nations Transitional Administration in East Timor regarding Cooperation in Legal, Judicial and Human Rights related matters. 144

Ibid., Sections 1-9. 145

Commission of Experts Report, [81]. 146

Hirst and Varney, 7. 147

Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 30. 148

Hirst and Varney, 7; the ten priority cases were: 1) the Liquia Church massacre of April 6, 2) the attack on the house of Manuel Carrascalo of April 17, 3) the attack of the Maliana Police Station of September 2-8, 4) the Lospalos case of April 21 to September 25, 5) the Lolotoe case of May 2 to September 16, 6) the Suai Church massacre of September 6, 7) the attack on Bishop Belos house of September 6, 8) the Passabe and Makaleb massacres of September and October,

led to a total of 55 trials proceeding in the Special Panels for Serious Crimes, resulting in 84 convictions and three acquittals.149 Most of the jail sentences handed out were between seven and fifteen years in length.150 The glaring discrepancy between the numbers of those tried and those indicted came as a result of Indonesias lack of cooperation in transferring suspects between jurisdictions, in direct contravention of the MOU of 2000.151 339 suspects remain at large, the vast majority thought to be residing in Indonesia.152 Flaws in the Proceedings: Dili Obviously, the biggest hurdle faced by the Special Panels was the inability to bring suspects residing outside of Timor-Leste to trial. As a result, it is mainly low-level East Timorese militia members who have been made legally accountable for the events of 1999, rather than the Indonesian military, police and civil officials who are alleged to have planned, managed and commanded the violence (even though some of these individuals were actually named in SCU indictments).153 While a total of 77 indictees became the subject of Interpol Red Notices,154 this procedure has had little or no effect in procuring the suspects for trial, due to non-cooperation from Indonesia, and a lack of political will from other UN member states.155 As a UN investigative commission noted in May 2005, despite the number of convictions secured against lower-level perpetrators,

9) a second Lospalos case and 10) cases of sexual violence in various districts between March and September (Hirst and Varney, 7-8; note 49). 149

One other defendant was ruled unfit to stand trial, and the prosecution case was either withdrawn or dismissed against 13 further defendants (Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 30-31). 150


Anton Girginov, Extradition from Indonesia to East Timor and the Serious Crimes Process in East Timor (1999-2005), East Timor Law Journal 3 (2006): 2, [1]; The Indonesian government argued that the agreement did not become binding until it was ratified by parliament, which has never occurred. Moreover, the Indonesian government also claimed that the MOU only applied to the period of UNTAET administration, and so did not apply after Timor-Leste became fully independent in May 2002 (Hirst and Varney, 16). 152

Commission of Experts Report, [48]; Hirst and Varney (at 16) estimated that in June 2005, 304 suspects were residing in Indonesia. 153

Cohen, 11; Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 4. 154

A Red Notice, issued by Interpol (the worlds largest international police organisation) allows information contained in a warrant for arrest issued by a domestic jurisdiction (in this case, UNTAET/Timor-Leste) to be circulated worldwide, with a view to securing international cooperation in making a provisional arrest of the suspect abroad (Interpol, Fact Sheet: Notices, Available : http://www.interpol.int/Public/ICPO/FactSheets/GI02.pdf (5 September 2006); Interpol, Wanted, Available: http://www.interpol.int/Public/Wanted/Default.asp (5 September 2006)). Since the closure of the Serious Crimes Process in May 2005, the Prosecutor-General of Timor-Leste has also forwarded 10 arrest warrants to Interpol, which have resulted in the issue of new Red Notices (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [11]). 155

Hirst and Varney, 8; Nevins, 165; Amnesty International and Judicial System Monitoring Programme, [4.1].

the serious crimes process has not yet achieved accountability of those who bear the greatest responsibility for serious violations of human rights

committed in East Timor in 1999.156

The most serious example of this problem came after 24 February 2003, when the SCU issued its most renowned indictment, against General Wiranto,157 as well as six other high-ranking TNI officers and Abilio Soares, the former civilian Governor of East Timor.158 Amongst the charges, Wiranto was accused of crimes against humanity, on the basis of command responsibility.159 After the high-profile indictment was issued, a lack of political support for the continued operations of the SCU and Special Panels was manifest from the way in which first the UN, and then the government of Timor-Leste distanced themselves from the indictment. Each claimed it was the others responsibility, in order not to compromise their relations with Indonesia.160 Timor-Lestes General Prosecutor has refused to forward the arrest warrant to Interpol, hence Wiranto and his co-accused remain at large in Indonesia,161 and are able to travel abroad with relative freedom.162 In addition to those suspects presently outside of Timor-Lestes jurisdiction, there are other groups of perpetrators that were never the subject of SCU prosecution. First, it is estimated that around 830 murders committed in 1999 did not result in indictments, primarily due to resource, financial, and time constraints.163 Second, many of the perpetrators of crimes other than murder have also never been the

156

Commission of Experts Report, [359], original emphasis. 157

Wiranto was the Indonesian Minister of Defence, and Commander of the Armed Forces at the time of the plebiscite (van Klinken and Bourchier, 216). 158


Ibid., 10; see also Chapter One, Legal Responsibility for Crimes Against Humanity for more detail on the elements of command responsibility at international law. Except General Wiranto and Sub-Regional Commander Mohammed Noer Muis, all of the other accused were charged under both the command responsibility and individual responsibility doctrines (Commission of Experts Report, [207]). For a comprehensive dossier of information regarding the alleged involvement of General Wiranto and other senior Indonesian army personnel in crimes against humanity, see van Klinken and Bourchier. 160

Stephanie Frease, Playing Hide and Seek with International Justice: What Went Wrong in Indonesia and East Timor, ISLA Journal of International and Comparative Law 10 (2004): 283, 290; within hours of the indictments release, Fred Eckhard, Spokesman for the UN Secretary-General, told a press conference that all indictments produced by the SCU were issued by the Prosecutor-General of Timor-Leste, rather than by UNMISET. The Prime Minister of Timor-Leste, Mari Alkatiri, then berated the UN for abandoning its responsibility towards the justice process. East Timorese President Xanana Gusmao also claimed it was the responsibility of the international community to pursue justice through judicial processes that they had in fact created (Bowman, 397; Jrvinen, 52). 161

Commission of Experts Report, [70]-[73]. 162

If the Prosecutor-General of Timor-Leste were to forward the arrest warrant to Interpol for worldwide distribution, Wiranto and his co-accused would risk provisional arrest if they travelled outside Indonesia (Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?; Interpol, Fact Sheet: Notices; Interpol, Wanted). 163

Commission of Experts Report, [107]; Hirst and Varney, 17-18; of the approximately 1400 murders committed during the 1999 violence, at the conclusion of the Serious Crimes process only 572 had been the subject of indictments (Hirst and Varney, 30).

subject of indictments, for similar reasons.164 Third, a loophole developed whereby those perpetrators of serious crimes such as murder who were consequently ruled ineligible for the CAVRs Community Reconciliation Processes were also not captured by the SCUs prosecution strategy, due to financial and resource constraints in pursuing lowest-profile suspects.165 Therefore, whilst 84 individuals were convicted by the Special Panels, many potential suspects also escaped trial. A further point relates to the nature of the charges actually laid. In many cases the political significance of securing convictions for crimes against humanity was sacrificed for simple murder charges, so as to ensure a cheaper or faster trial.166 Similarly, war crimes were not the subject of SCU indictments, despite being within the jurisdiction of the mechanisms.167 As with the above problems, financial and time constraints led to the adoption of this strategy, although a number of other factors were also significant. The inexperience of some UN investigators in pursing complex international-law based cases, the fact that at any one time the SCU only ever comprised 12 international investigators covering crimes committed in all 13 districts of Timor-Leste, and the constant speculation over the future lifespan of the Serious Crimes process during its operation contributed to this more streamlined prosecution strategy being adopted.168 Although it is has been argued that proceedings within the Special Panels, when they did go ahead, represented a credible justice process that conformed to international standards,169 the trials were not without their problems. Again, foremost amongst these was a lack of financial and human resources.170 This shortcoming was especially acute for the Court of Appeal, which did not operate

164

These crimes include torture, sexual offences, destruction of property, and deportation cases, which were generally not pursued in investigations unless they were attached to murders, even if they might otherwise have formed elements of crimes against humanity (Hirst and Varney, 8, 19). The Commission of Experts Report (at [107]) lists the outstanding cases as including 60 possible charges of rape or gender-based crimes, and possibly hundreds of cases of torture and other acts of violence. 165

Carolyn Graydon, interview by author, Melbourne, 26 May 2006; the CAVR also created a procedure whereby if more evidence came to light through the Community Reconciliation Process that changed the classification of a less-serious crime to a serious crime, then the incident should be referred to the SCU for prosecution. Of the 27 cases referred by the CAVR, none was ever prosecuted, due to a lack of resources and the expiry of the SCUs mandate (Commission of Experts Report, [107]). A paradoxical situation therefore arose whereby the perpetrators of less-serious crimes had to submit to a justice procedure, whereas the perpetrators of more-serious crimes did not. 166

Hirst and Varney, 7, 17. 167

Ibid., 7; it has been suggested that if the 1999 violence was classified as an armed conflict (one of the elements of a war crime, as required under the Rome Statute, Article 8, and the Geneva Conventions, Article 2), this may have in fact strengthened the official Indonesian position that the violence consisted of a series of clashes between rival East Timorese groups, rather than a premeditated campaign of destruction and intimidation. On this point, see Chapter One, International Crimes Committed in 1999. 168

Hirst and Varney, 19-20; Commission of Experts Report, [60]. 169

Commission of Experts Report, [357]; Bowman, 387-388; Jolliffe, Human Rights Abuses and Impunity in East Timor - The Living Memory Project, speech delivered at the National Library of Australia, Canberra, 27 September 2006. 170

Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 5.

between November 2001 and June 2003, due to a shortage of international judges.171 Moreover, in the two Trial Courts, no administrative support was provided to the judges,172 translation and interpreting services were manifestly inadequate,173 and the transcription of judgements was sometimes delayed, or absent altogether.174 Financial resources also contributed to a disparity in the standard of legal representation between the prosecution teams and defendants, however under-funded the prosecution lawyers may have been. The Defence Lawyers Unit (DLU), created by UNMISET in September 2002, was severely understaffed, initially employing only one defence lawyer, which eventually grew to seven by April 2005.175 The lawyers employed were generally inexperienced in dealing with the nature of their clients charges176 and were not provided with interpreting and translation assistance, administrative support, or travel assistance in order to meet clients.177 Also notable was the lack of defence witnesses for the first 14 trials that took place in the Special Panels.178 Access to evidence, and not merely suspects, from Indonesia has been a significant problem faced by the Serious Crimes regime.179 Finally, criticism has also been made of the jurisprudence of the Special Panels. The root of this problem is apparent from the fact in January 2005 it was announced that all 22 East Timorese judges, some of whom had sat on the Special Panels, had failed their probationary legal exams. 19 of the judges were hence stood down from their duties pending more training.180 Moreover, with the international judges on the Panels, UNTAET initially struggled to find Portuguese-speaking judges with the requisite grounding in international law to accept posts in

171

Ibid.; a lack of judges was also a problem within the two Trial Courts, from time to time (Bowman, 389-390; Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 5). 172

See Commission of Experts Report, [127], for more detail. 173

Judicial System Monitoring Programme, Submission to the United Nations Commission of Experts, 5. This problem was particularly significant, considering UNTAET regulations specified that the Courts must provide translation and interpreting services covering all four official languages of the Special Panels: Portuguese, Tetum, Indonesian and English (Bowman, 390). For example, see Public Prosecutor v Paulino De Jesus (18 November 2003, Trial Court), during which the language used in the hearing could not be understood by the defendant or his family members in the court gallery. 174

Bowman, 390; Hirst and Varney, 23; The Universal Declaration on Human Rights, Article 10, guarantees the right to a fair and public hearing. This arguably includes the right of the parties and the general public to see the way in which justice is administered, and to know the reasons for a judicial decision (Amnesty International and Judicial System Monitoring Programme, [3.8]). 175

Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?; Commission of Experts Report, [141]. By the closure of the Serious Crimes Process, the seven defence lawyers were accompanied by three defence assistants, two defence investigators, two interpreters/translators and five other language, logistics and administration assistants. 176

Commission of Experts Report, [367]; Hirst and Varney, 20. 177

Hirst and Varney, 20; Bowman, 392; Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?. 178

Bowman, 392; a number of potential defence witnesses were located in West Timor at the time of the first trials (Hirst and Varney, 20-21). 179


Roper and Barria, 530-531; Commission of Experts Report, [135].

Timor-Leste,181 hence some earlier decisions making little reference to international criminal and humanitarian law precedent.182 Three specific examples of decisions that have been heavily criticised are: first, the overly onerous test used by some judges to satisfy a request for an arrest warrant the East Timorese Deputy General Prosecutor had complained that the legal burden to be satisfied for the granting of an arrest warrant was practically the same level as that required for a guilty verdict.183 Second, inconsistent sentencing decisions evinced little coordination between judges.184 A third and most important example was an Appeals Court decision in 2003 whereby the judges chose to apply Portuguese, rather than Indonesian law, in direct contravention of UNTAET Regulation 2000/15.185 Jakarta ad hoc Human Rights Court: Summary of Proceedings The Indonesian Attorney-Generals office sought the prosecution of 18 defendants in the ad hoc Court over the course of 12 trials, commencing in March 2002.186 Those indicted were primarily members of the police and military who were in command at the time of the violence, in addition to a militia leader, the Regents of Covalima and Liquia, and the former civilian Governor of East Timor.187 The trials led to only six convictions, all of which resulted in appeals to the High Court of Human Rights, and then to the Indonesian Supreme Court. Of the six appeals, five convictions were overturned.188 Only the conviction of East Timorese-born militia leader, Eurico Guterres,189 was upheld. Guterres began serving a 10-year jail term for crimes against humanity in May 2006.190 Flaws in the Proceedings: Jakarta

181

Commission of Experts Report, [129]; Amnesty International and Judicial System Monitoring Programme, [3.4]. 182

Bowman, 391; Commission of Experts Report, [131]. 183



Amnesty International and Judicial System Monitoring Programme, [3.11]; in the case of Prosecutor General v Armando dos Santos (15 July 2003, Court of Appeal), on appeal the Court replaced the defendants conviction for murder with genocide, despite this crime failing to exist under Indonesian law (which was to continue to apply unless subsequently overridden, according to UNAET Regulation 1999/1). The Court argued that UNTAET Regulation 2000/15 (establishing the Special Panels and Serious Crimes Unit) was unconstitutional in its application to crimes committed during 1999, due to it breaching an East Timorese constitutional prohibition of the non-retroactivity of criminal laws. Hence the court employed genocide, which exists under Portuguese law, as the new charge. The potentially serious implications of the decision were in part resolved by a law adopted by the National Parliament on 8 October 2003 (Amnesty International and Judicial System Monitoring Programme, [3.11]). 186

Jrvinen, 45. 187

Commission of Experts Report, [169]-[170]; also provided here is a full list of indicted suspects and their charges. 188


Guterres is the former commander of Aitarak, a notorious Dili-based pro-Indonesia militia group, and the former deputy commander of the Pasukan Perjuangan Integrasi (Integration Struggle Force) van Klinken and Bourchier, 164-167. 190

Anggota Komisi I DPR Simpati pada Guterres, Gatra, 9 May 2006.

The ad hoc Court trials and their subsequent appeals have been widely denounced by UN member states, international NGOs and human rights advocates as a failure of justice, due to the scant respect that was paid to international standards of criminal procedure, and the eventual acquittals of all defendants except Eurico Guterres.191 Moreover, those who were convicted at first instance in most cases received sentences well below the minimum length prescribed by legislation.192 Critics have alleged that the Indonesian government did just enough to satisfy the international community that a satisfactory justice process had been carried out, including the holding of the KPP-HAM investigation and the nominal holding of trials, without having any real intention to bring the perpetrators to justice.193 The bases of criticism of the trials have been numerous. They begin with the original legislative mandate given to the ad hoc Court, as it could only try acts that occurred during either April or September 1999.194 This meant that the court was effectively only able to indict those alleged to have failed to prevent the violence as it was taking place, rather than those military and civilian officials alleged to have been personally involved in setting up the militia operations.195 Looking exclusively at these two one-month periods accorded with the official Indonesian government stance that the violence took place between warring East Timorese factions, with the TNI merely neutral observers. No systematic and organised pattern of human rights abuses by the Indonesian military could therefore be established.196 Although the findings of the KPP-HAM investigation (the basis of the decision to establish the ad hoc Court) have been regarded as a credible representation of the nature of human rights violations in East Timor during 1999,197 these findings were scarcely used at all in the framing of indictments. In particular, only four of the thirteen most prominent (and 670 overall) cases identified in the report were the subject of prosecutions by the Attorney-Generals office - incidents that occurred in only three of East Timors thirteen districts.198 Moreover, most of the 32 high-ranking civilian and military officials named in the KPP-HAM report, in addition to

191

Cohen, ii; Commission of Experts Report, [370]; Above the law; Indonesias security forces, 48; Roper and Barria, 533; Report of the Secretary-General on justice and reconciliation for Timor-Leste, [14]; Linton, 357. 192

Cohen, 13; all those defendants found guilty by the ad hoc Court, except Eurico Guterres, were sentenced to either three or five years imprisonment, when their crimes against humanity convictions carried a minimum ten year sentence (Commission of Experts Report, [188]). 193

Harris-Rimmer; Graydon; Robinson, East Timor 1999, 273. 194

Nevins, 162; Linton, 357. 195

Cohen, 11; International Crisis Group, Indonesia: Implications of the Timor Trials, International Crisis Group Briefing Paper, Jakarta and Brussels: International Crisis Group, 2002, 4, 13; James Dunn, interview by author, Melbourne, 26 May 2006. 196

Commission of Experts Report, [225]; International Crisis Group, 4, 12; for an account of the commonly-held Indonesian position, see Muladi, 17-21. 197

Hirst and Varney, 4; Report of the Secretary-General on justice and reconciliation for Timor-Leste, [14]; Commission of Experts Report, [368]; Harris-Rimmer. 198

Amnesty International and Judicial System Monitoring Programme, [5.2]-[5.3], [6.3]; the four incidents that were the subject of prosecution were the Liquia and Suai Church massacres, and the attacks on the residences of Manuel Carrascalo and Bishop Belo.

General Wiranto, were never even indicted by prosecutors.199 Only mid-level perpetrators were the subject of prosecution, rather than those at the top of the chain of command.200 Undoubtedly the most common basis for criticism of the trials was the manifest lack of commitment from the prosecution. Avoidable weaknesses in the prosecution case were found in almost all instances, including the drafting of generic indictments that unnecessarily created multiple burdens of proof for prosecutors,201 a failure to use all available evidence,202 the use of other indictees as prosecution witnesses,203 counsel often leaving much of the questioning of witnesses to judges204 and the use of an unworkable prosecution strategy that focussed on individual incidents rather than the systematic nature of the crimes as documented in the KPP-HAM report and by international experts.205 Some observers conclude that a lack of political will on the part of Indonesian government, in particular the office of the Attorney-General, was to blame,206 although the presence of direct political (or military) pressure on prosecutors is of course very difficult to prove. It should be noted that a number of the judges worked extremely hard to make up for deficiencies in the prosecution case, and hence a few significant convictions at first instance could be obtained.207 These efforts most notably included the guilty

199

Cohen, 14. 200

Amnesty International and Judicial System Monitoring Programme, [8]; Dunn, interview by author. 201

Amnesty International and Judicial System Monitoring Programme, [8]; Cohen, 51-52. The indictments used in the trials were mass produced and were not tailored to each individual defendants circumstances. In almost all cases the indictee was charged with command responsibility for a failure to prevent crimes against humanity committed by his subordinates, meaning the prosecution had to prove the existence of 1) a chain of command; 2) crimes against humanity and 3) a failure to control, as required by the Rome Statute, Articles 7 and 28. For a comprehensive comparison of the ad hoc Court indictments with SCU indictments, see Amnesty International and Judicial System Monitoring Programme, [7.1]. 202

Commission of Experts Report, [371]; Robinson, East Timor 1999, 273; specifically, Cohen (at 14) lists the failure of the prosecution to use evidence derived from 1) the KPP-HAM report; 2) UNTAET documents; 3) any independent investigation (such as the ICIET Report or the Report of the Special Rapporteurs see note 124 (above)); 4) many poten

Justice for Serious Crimes Committed during 1999 in Timor-Leste: Where to From Here? - Daniel Pascoe

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