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Victoria Coakley[*]
An examination of the context for the establishment of a truth commission in East Timor.
On 30 August 2001, the anniversary of the popular consultation in East Timor in 1999, more than 90% of eligible voters took part in a peaceful ballot electing a Constituent Assembly of 88 seats. Unsurprisingly, the Revolutionary Front for an Independent East Timor (FRETILIN), the party that for 24 years led East Timor’s struggle for independence, won the country’s first democratic election. Fretilin will occupy 55 seats and along with its colleagues is tasked with adopting a constitution within 90 days and determining the framework for governing what will become the world’s newest nation. The East Timorese have sacrificed much for their right to govern themselves. Of the many challenges now facing the new government of East Timor is the continued pursuit to prosecute those responsible for the violence in 1999, and the fostering of reconciliation among East Timorese in order to rebuild a just and decent society.
On 20 June 2001, the National Council of Timorese Resistance unanimously passed an amended Regulation on the Establishment of a Commission on Reception, Truth and Reconciliation in East Timor. The National Council also unanimously passed a resolution calling on the East Timor Transitional Administrator, Sergio Vieira de Mello, to take all steps to establish an International Tribunal to prosecute leaders of anti-independence militias and their Indonesian army supporters responsible for committing serious human rights violations in East Timor. This latter resolution reflected the lack of confidence the East Timorese have in Jakarta fulfilling its promise to bring to justice those responsible for the violence in East Timor in 1999. These resolutions endorsed the statement by the President of the National Council of Timorese Resistance, Xanana Gusmao that, if the international community were to take the prime responsibility in bringing about justice, the East Timorese would bear the responsibility for reconciliation.
This article discusses the context for the pursuit of justice and reconciliation in East Timor — the substantial legacy of gross human rights violations, the avenues taken by the United Nations and Indonesia in bringing to justice perpetrators of the violence and destruction in 1999, and the implementation by the East Timorese of the Commission on Reception, Truth and Reconciliation. It is beyond the scope of this article to analyse the value of truth commissions — that is the subject of another article.
Background to recent events in East Timor will be familiar to many. Following the end of Portugal’s colonial rule in 1974, political turmoil engulfed East Timor. On 28 November 1975, the FRETILIN unilaterally declared independence from Portugal. On 7 December 1975, approximately 10,000 Indonesian troops were sent into the Territory, with Indonesia claiming that other East Timorese political parties and elements had sought its intervention. In the year that followed the invasion, an estimated 100,000 people were killed by the Indonesian military (TNI).[1] A series of UN Resolutions, from both the Security Council and the General Assembly, condemned the Indonesian invasion and called for the withdrawal of Indonesian forces.[2] On 17 July 1976, Indonesia formally annexed the territory and proclaimed East Timor as the 27th province of Indonesia. The UN General Assembly rejected the claim that East Timor had been integrated into Indonesia and called for the exercise by the East Timorese of their right to self-determination.
In the 1990s East Timorese resistance groups formed an umbrella organisation called the National Council of Timorese Resistance (CNRT), while the Armed Forces of National Liberation of East Timor (FALINTIL) was engaged in armed opposition to Indonesia’s presence in the territory. The Indonesian authorities used armed militia groups as a strategy to deal with the armed and other opposition groups that resisted the Indonesian presence in East Timor. FALINTIL’s operations were mainly defensive and confined to the hills. There have been some reports on occasional abuses committed by FALINTIL during this period.
International human rights bodies such as Human Rights Watch and Amnesty International released numerous reports in the 1990s about serious human rights violations in East Timor, relating to continuing allegations of extrajudicial killings, torture, ‘disappearances’ and acts of sexual violence attributed to members of the Indonesian National Army (TNI) and pro-government militias and paramilitary groups.
In May 1998, following the end of the Suharto regime, the new government under then President Habibie, committed itself to reform and respect for human rights. Habibie stated his intention to move towards granting ‘special status’, or ‘autonomy’ to East Timor within the Republic of Indonesia. However reports emerged in late 1998 and early 1999 that Indonesian authorities had established new militia groups. Indonesian authorities portrayed the emergence of new militia groups as a spontaneous reaction against the activities of supporters of independence for East Timor.[3]
In an agreement signed on 5 May 1999, Indonesia, Portugal and the UN agreed on a consultation process for the East Timorese people to accept or reject the Indonesian offer of autonomy. The agreement stressed that the responsibility for ensuring a secure environment for the ‘popular consultation’, devoid of violence or other forms of intimidation, would rest with the appropriate Indonesian authorities. It was agreed that if the majority of East Timorese rejected the offer of autonomy and the Indonesian Parliament endorsed the result, then the UN would be invited to assist with the transition of East Timor to nationhood.
On 30 August 1999, 25 years after the Portuguese colonial administration’s exit and the subsequent incorporation of East Timor into Indonesia, nearly 99% of registered voters turned out for the vote. On 4 September, the United Nations Mission in East Timor (UNAMET), which organised and conducted the popular consultation, announced that the East Timorese people had voted overwhelmingly in favour of independence — 78% of the voters had rejected the option of autonomy within Indonesia. After the result of the ballot was announced, the region descended into violence. Approximately 740,000 people were displaced by the violence and destruction unleashed by the pro-integrationist militias, backed by the Indonesian security forces; 500,000 people became internally displaced as they fled within East Timor, most of them seeking refuge in the hills; while 240,000 people were displaced to West Timor or elsewhere in East Timor.[4] Human rights groups claim that up to 1500 East Timorese independence supporters were murdered in a reign of terror that followed the popular consultation.[5]
On 12 September 1999, President Habibie announced to a large gathering of international media representatives that he had invited the UN to dispatch an international force to assist in restoring security in East Timor. The UN Security Council passed Resolution 1264 on 15 September authorising what was to become the International Force — East Timor (INTERFET), to take all necessary actions to restore peace and security in East Timor and to protect and support UNAMET in its tasks. On 25 October 1999, the UN Security Council established the United Nations Transitional Administration in East Timor (UNTAET), with a mandate including the provision of security and maintenance of law and order, the establishment of an effective administration, and the coordination and delivery of humanitarian assistance, rehabilitation and development assistance.[6] INTERFET officially transferred control to UNTAET on 23 February 2000.
Attempts to seek justice for the grave violations of human rights committed in East Timor in 1999, and previously, have necessarily occurred at the international level in Indonesia and in East Timor. Action by Indonesia is critical, as many of the perpetrators of the violence in 1999 are believed to be present in Indonesian territory. The following three mechanisms for seeking justice are examined in turn: the International Commission of Inquiry; Indonesia’s ad hoc human rights court; and trial of crimes against humanity conducted in East Timor.
In September 1999, the UN Commission on Human Rights passed a resolution establishing an international commission of inquiry for East Timor (the UN Commission of Inquiry).[7] The Commission was established in order ‘to gather and compile systematically information on possible violations of human rights and acts which might constitute breaches of international humanitarian law committed in East Timor since January 1999, and to provide the Secretary-General with its conclusions with a view to enabling him to make recommendations on future actions’. In January 2000, the UN Commission of Inquiry issued a report stating that the evidence gathered clearly demonstrated a pattern of serious violations in East Timor of fundamental human rights and humanitarian law. The UN Commission of Inquiry found that the UN 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. The Commission noted ‘that most of the East Timorese who addressed the Commission did not call for revenge or retribution, but sought justice, recognition of their rights and reconciliation’.[8]
The UN Commission of Inquiry recommended that the UN should establish an international human rights tribunal which would sit in Indonesia, East Timor and any other relevant territory to receive complaints and to try and sentence those accused by the independent investigation body of serious violations of fundamental human rights and international humanitarian law in East Timor after January 1999.[9] The UN Commission of Inquiry stated that:
It is fundamental for the future social and political stability of East Timor, that the truth be established and those responsible for the crimes committed be brought to justice. Every effort has to be made to provide adequate reparation to the victims for only then can true reconciliation take place.[10]
At the time of writing, no step toward such a tribunal has taken place. UN Secretary-General Kofi Annan, upon receiving the report, said the Indonesian investigative process should be given a chance to work first.
In November 2000, the Indonesian Parliament agreed to allow the prosecution of individuals present in Indonesian territory responsible for human rights violations committed in East Timor in 1999. Indonesia’s Human Rights Commission, Komnas Ham, had investigated many of these crimes. In October 2000, the Attorney-General’s Office named 23 individuals suspected of involvement in the first five documented cases of human rights violations in 1999 — the killing of refugees hiding in a church in Liquica on 6 April; the killings at independence leader Manuel Carrascalao’s house on 17 April; the 5 September attack on Bishop Belo’s compound and the Catholic Diocese in Dili; a massacre of priests and displaced persons at a church in Suai on 6 September; and the killing of Dutch journalist Sander Thoenes on 21 September. The then Attorney-General, Marzuki Darusman, informed the High Commissioner for Human Rights, Mary Robinson, during her visit to Indonesia on 22–23 November 2000 that indictments had been issued against 14 people suspected of committing serious crimes during the violence in East Timor in 1999.[11]
In January 2001, following the report of the UN Commission of Inquiry, calling for the establishment of an international human rights tribunal, then President Abdurrahman Wahid convinced the UN Secretary General Kofi Annan to resist such calls. President Wahid argued that Indonesia should be given a chance to pursue its own prosecutions before specially constituted Indonesian courts.
In March 2000, the Indonesian Parliament finally approved the establishment of an ad hoc human rights tribunal, leaving final approval to President Wahid. On 23 April 2001, President Wahid enacted by Presidential Decree an ad hoc human rights court to adjudicate on the documented cases of gross human rights violations of human rights in East Timor in 1999 and in Tanjung Priok in 1984.[12] The decree limited the cases that could be tried to those that occurred after the 30 August ballot, effectively rendering the 6 April massacre in Liquica and the 17 April killings at independence leader Manuel Carrascalao’s house beyond prosecution.
The United Nations urged the Indonesian authorities to reissue the decree without temporal restrictions and, together with a number of States voiced concern at lenient sentencing by Indonesian courts. The latter concern stemmed from two decisions by Indonesian courts — on 30 April 2001 the notorious former East Timorese militia leader Eurico Guterres, was sentenced to six months for inciting his men to fight Indonesian security personnel (four months spent under house arrest were deducted), and, on 4 May 2001, sentences ranging from 10 to 20 months were handed down to six men in connection with the 6 September 2000 killings of three UNHCR personnel in Atambua.[13] The Indonesian Attorney-General has not yet appealed against these extremely light sentences.
In a surprise move, President Megawati Sukarnoputri, soon after taking office in early August, issued a presidential decree authorising a partly established ad hoc human rights tribunal to begin trying cases. The decree included amendments to Wahid’s decree of April, eliminating the temporal restrictions. The tribunal will be made up of five judges and will be based in the Central Jakarta District Court. The judge originally in charge of setting up the court, Supreme Court Justice Syaifuddin Kartasamita, was assassinated in a drive-by shooting in north Jakarta on 26 July 2001. Kartasamita’s successor, Judge Benjamin Mangkudilaga, a member of Komnas Ham, has stated that the court should be ready to start trying suspects in September. State prosecutors have prepared files to prosecute 18 of the 23 suspects originally named last year. One of those suspects, a militia leader, was murdered within days of being named.[14]
Parallel to the developments in Indonesia, UNTAET’s Special Crimes Investigations Unit was established in East Timor in June 2000 to investigate and prosecute serious crimes committed between 1 January 1999 and 25 October 1999. The Panel, which consists of one Timorese and three international Judges, was given jurisdiction to try cases of genocide, war crimes, crimes against humanity, murder, sexual offences and torture.
Serious Crimes Investigators have concentrated on ten priority cases, including the five documented instances which Komnas Ham has investigated. The killing of journalist Sander Thoenes being the exception. Four cases have been handed over from the Investigation Unit to the Prosecutor General.
A serious lack of resources, both human and material, has hampered the investigative work of the Unit. Because of the delay in initiating investigations, a number of detainees, who had been held for months in pre-trial detention, have been released by the General Prosecutor on grounds of insufficient evidence.[15] It has been a great source of frustration inside East Timor that justice has proceeded so slowly. However, trials before the Special Panel for Serious Crimes commenced early this year.
The first trial containing charges of crimes against humanity started on 3 July 2001 in Dili. The indictment accuses 11 people of committing crimes against humanity, including murder, torture, deportation and the forcible transfer of the civilian population in Lospalos, Lautem District, between 21 April and 25 September 1999. The group, which consists of members of the ‘Team Alfa militia’ and an Indonesian army officer, is accused of committing at least 13 murders. A further four indictments for crimes against humanity have been filed and these cases have yet to be heard. A total of 24 people have been accused of crimes against humanity.[16] The Prosecutor General’s Office is also pursuing a policy aimed at prosecuting individual militia perpetrators, who have been taking part in criminal acts together with others in senior or command positions.[17] This first trial of crimes against humanity will test whether the investigators can prove that the 1999 violence was part of a larger plan or policy.
UN Secretary-General Kofi Annan in his latest report to the Security Council, stated ‘Faster progress overall has been hampered by a lack of translators … [and] the justice system continues … to be severely lacking in both physical and human resources, which is hampering its development’.[18] Kofi Annan also noted that the memorandum of understanding on cooperation in legal, judicial and human rights matters, concluded with Indonesia on 6 April 2001, has not yet achieved results. Specifically, the Indonesian authorities remain reluctant to implement section 9 of the memorandum, which allows for the transfer of persons to East Timor for the purposes of prosecution.[19]
The prosecution of perpetrators is not the only possible path to the resolution of the abuses of human rights in East Timor. While efforts have been made to prosecute, attention has also been focused on other options — particularly reconciliation through a truth commission.
Many countries have established truth commissions as a means of beginning the path to reconciliation and as a way of rebuilding a unified country. Truth commissions have found favour in some cases due to the inadequacy of domestic legal systems and international criminal tribunals to deal with the legacy of conflict and confusion. Truth commissions can also provide a frame of reference that provides a focus in societies which have suffered mass human rights violations on the restoration and rebuilding of relationships. Truth commissions may also prove a better means for societies to deal with the past, and halt the continuing violence and divisions.
Political change is but one essential step on a longer and more complex journey towards creating a decent and just society. Israeli philosopher Avishai Margalit defines a ‘decent society’ as one whose institutions do not humiliate those who depend on them, and a ‘just society’ as a civilised society, in which people do not humiliate one another. [20]Countries in transition to democracy necessarily have to address the existing power structures and institutions which have exploited internal conflict in order to entrench themselves, instilling civil distrust. It is necessary to create space to allow people to create new structures to replace the old regime.
Truth commissions are bodies set up to investigate a past history of human rights violations in a particular country — which can include violations by the military, other government forces, or by armed opposition forces. Countries which have established official commissions of inquiry include: Bangladesh, Uganda, Israel, Argentina, Guinea, Uruguay, Chile, Chad, Czech Republic, Germany, Romania, Poland, El Salvador, Guatemala, Mexico, Nicaragua, Togo, Niger, Ethiopia, Malawi, and South Africa.[21]
Truth commissions have generally included the following four elements:
• a focus on the past rather than the present;
• an attempt to paint the overall picture of human rights abuses over a period of time as opposed to a focus on a specific event;
• a pre-defined time-frame, ceasing to exist following the submission of a report on its findings; and
• authority, by way of its sponsor, allowing it greater access to information, greater security or protection to dig into sensitive issues, resulting in a report with greater impact.[22]
Most truth commissions are created at a point of political transition within a country and are used either to demonstrate or underscore a break with a past record of human rights abuses, to promote national reconciliation, and/or to obtain or enhance political legitimacy.
Desiring to promote national reconciliation and healing following the years of political conflict in East Timor and, in particular following the atrocities committed in 1999
Regulation No. 2001/10 On the Establishment of a
Commission for Reception, Truth and Reconciliation in
East Timor, UNTAET/REG/2001/10, 13 July 2001
On 20 June 2001, after broad-based consultations with civil society and the justice system, the National Council of Timorese Resistance finalised and endorsed a regulation establishing a Commission for Reception, Truth and Reconciliation (the Commission). The Commission will enable the East Timorese to create a public record of human rights abuses since 1975, to facilitate the reception and reintegration of returning refugees from West Timor, and other parts of Indonesia, and to promote community reconciliation by dealing with low-level offences committed in 1999.
The Commission was originally proposed by East Timor and was developed with the support of the UN, working alongside East Timorese groups, the Catholic Church and the umbrella independence body, the National Council of Timorese Resistance. Although similar to the South African Truth and Reconciliation Commission established after the fall of apartheid, East Timor’s commission will be different in one major respect — there will be no pardons for serious crimes. Serious crimes such as rape, murder, torture and organising violence in East Timor are being investigated by the Serious Crimes Investigation Unit, and trials have begun as discussed above.
The Commission will have two primary objectives and functions:
• to inquire into the pattern of human rights violations in East Timor within the context of the political conflicts between 1974 and 1999 in order to establish the truth about past human rights violations; and
• to create a community reconciliation body which will facilitate agreements between local communities and the perpetrators of non-serious crimes and non-criminal acts committed over the same period thereby supporting the reception and reintegration of individuals who have caused harm to their communities.
In pursuing the first function, the Commission may organise public hearings at which victims are able to speak of their experiences, or may organise investigations to establish the truth about past violations. The Commission may inquire into the nature, causes and extent of human rights violations, who was involved, the role of internal and external factors, and accountability. In order to undertake the second function, the Commission will develop a mechanism for community-based reconciliation, involving perpetrators of less serious crimes, who must be willing to confess and make a public apology for their crimes, undertake community service, and pay restitution. A fast, community-based mechanism will be created ‘to deal with less serious crimes committed in 1999, thus freeing up East Timor’s criminal justice system to concentrate their limited resources on those perpetrators responsible for the most serious crimes’.[23]
The Commission will operate for 24 months, beginning two months from the date Commissioners are appointed. Six regional offices will be established and they will be responsible for making written records of meetings, hearings and statements and will present quarterly, a written record of its activities to the National Commission. The Commission will submit a final report to the Transitional Administrator. The final report will summarise the findings of the Commission and will make recommendations concerning reforms and other measures to achieve the objectives of the Commission, prevent the repetition of human rights violations, and to respond to the needs of victims. The final report will be made immediately available to the public and the Transitional Administrator will consider all recommendations made with a view to their implementation.
An interim office of the Truth, Reception and Reconciliation Commission was set up in Dili at the beginning of August. It will initially be consulting with East Timor’s civil society organisations in order to establish selection panels that will solicit views from the East Timorese community as to who should become Commissioners. Following the elections the panel, which will consist of 13 members, is expected to be set up.[24]
In creating a truth commission, East Timor is embarking on a process that a number of other countries have undertaken in recent years. These examples provide a useful context to view and assess the model that East Timor has adopted. The main reasons for countries dealing with the aftermath of repression and gross human rights violations to establish truth commissions are for the purposes of:
• memory and truth telling,
• knowledge and acknowledgment,
• moral reconstruction of society, and
• promotion of national reconciliation.
Political violence traumatises by inscribing the memory of violence in the bodies and minds of its victims. Violence is a legacy that affects both personally and publicly in terms of social reality, of beliefs, values, knowledge and social identity. Regardless of the fact that the violence may have ended the suffering of the victims continues ‘because of the body’s capacity for memory’.[25]
In order to alleviate the suffering associated with memory, the process of truth telling is seen as an essential component of any attempt at healing and reconciliation. The South African Truth and Reconciliation Commission slogan ‘revealing is healing’ conveyed this idea that the truth of individual suffering is a vehicle to achieve both individual and collective healing. The stories of the victims are supposed to move people collectively thus diminishing the legacies of violence by sharing its effects.[26]
Without the truth being told, forgiveness and reconciliation will be difficult if not impossible — full knowledge of whom and what to forgive is of foremost importance. This process can help heal society’s wounds and restore dignity to the victims of the previous regime.[27]
Truth commissions can develop a complete picture of the causes, nature and extent of gross violations of human rights and make this known. They can also provide a mechanism that facilitates the confession of crimes and eases the pressure on a weak criminal system.[28] This is most useful where there are broad sectors of society that do not believe or acknowledge critical facts. The underlying assumption is that knowledge of such facts precedes public acknowledgment.
Timing is important. It is implausible for a Commission to make a complete and impartial analysis in the middle of an ongoing conflict, even if it could get the stories of both sides and all the facts. The purpose of the Commission is to undertake an objective evaluation not to act as a mediator.[29] A political settlement is needed before a truth commission can serve its purpose. However, if certain individuals or important sectors of a society do not have an open mind about the past, and are not ready to reflect on all that has been done, the work of the Commission will be difficult.[30]
Whatever the degree of attempted neutrality in its constitution or membership, or objectivity in its fact-finding processes, the Commission will have political consequences in terms of evaluation and reconstruction.[31] The findings of the Commission may condemn one party more than the other, even if there is an acknowledgment that wrongs were committed on both sides. There must be confidence on each side that its narrative will be accorded equal weight, regardless of whether the narratives clash. ‘This is a part of the acknowledgment function that truth commissions achieve’[32] and could serve to enable past enemies to live together, in some way. This is especially useful where a national community has been divided and polarised and may help to calm the political and social situation during a transition period.
In countries where the investigations end up confirming widely held beliefs about what has happened and who is responsible, the importance of truth commissions becomes more of acknowledgment than of knowledge. ‘Official acknowledgment at least begins to heal the wounds.’[33]
Given the capacity of the past to influence society’s present and future,[34] a society must reconstruct its moral underpinnings after it has experienced a major breakdown of the rule of law and basic civil values. As Lopes states ‘We must admit that these various forms of oppression and injustice resulted in extraordinary physical and spiritual suffering. In addition, these experiences undermined East Timorese values and culture. This is a serious matter that we must handle in order to return self-worth to the people of East Timor as well as to enhance national unity’.[35]
Reconstructing a just society is a long-term project.[36] ‘If the future is to offer an improvement on the past, there must both be a conscious and a continuing rejection of the crimes committed and the ideology that justified them.’[37] Truth commissions, in undertaking fact-finding inquiries to establish an accurate record of a country’s history and disputed acts, can leave an honest account of the violence and can allow the society to learn from its past in order to prevent the repetition of such violence in the future.[38]
Truth commissions can have a ‘cathartic’ affect in society, making it possible for a society to ‘cleanse’ itself through this process of breaking the silence and acknowledging a shameful period in its history.[39] A truth commission can provide a forum for people who have not been able to tell their story before. In El Salvador, thousands went to the Commission and recounted their story. A commissioner wrote:
One could not listen to them without recognising that the mere act of telling what had happened was a healing emotional release, and that they were more interested in recounting their story and being heard than in retribution. It is as if they felt some shame that they had not dared to speak out before, and, now that they had done so, they could go home and focus on the future less encumbered by the past.[40]
If the Commission is successful in its work, future generations will be served by the knowledge that the record of past abuses is as complete as it can be. The hope is that such a record, in combination with recommendations made by the Commission, will ensure the avoidance of such human rights violations in the future and will also further the establishment of the rule of law and a culture of human rights.[41]
A truth commission can contribute to the future with specific recommendations for institutional reform such as: reforming the military and police; strengthening democratic institutions implementing measures to promote national reconciliation; making reparations to victims of violence; and reform of the judicial system. In most cases the recommendations of truth commissions are not binding but can provide pressure points around which civil society or the international community can lobby for change.[42] The Commission assists to lay foundations for a new political system as well as to re-establish commonly shared values and civility which acts to guard against impunity.[43]
Disagreement still exists as to whether truth commissions help to promote national reconciliation or create deeper resentment and exacerbate old issues. Some question the value of a politically charged report in a politically fragile environment.[44] Careful planning and preparation is crucial to ensure that the process achieves its aims and objectives. If not, revenge and retaliation might result.
In El Salvador, the report of the truth commission had a dramatic effect on the nation’s conscience. Burgenthal wrote that the report put an end to the never-ending acrimonious debate and the exchange of inflammatory charges and counter charges, allowing the country to focus on the future rather than on the divisive past. ‘It removed the biggest obstacle on the way to national reconciliation: the denial of a terrible truth that divided the nation and haunted its consciousness.’[45] Burgenthal believes that telling the truth did not rub salt into the nation’s wounds so making national reconciliation harder; instead it allowed the nation to confront its past by acknowledging the wrongs committed before it could successfully embark on the ‘arduous task of cementing the trust between former adversaries and their respective sympathizers [sic], which is a prerequisite for national reconciliation … The wounds begin to heal with the telling of the story and the national acknowledgment of its authenticity.’[46]
Individuals themselves are not necessarily able to escape the social stigma with which violence had marked them. Humphrey describes testimony given by a woman to the South African Truth and Reconciliation Commission whose sister was murdered by ‘necklacing’ for allegedly being an informer.[47] The woman recounted the fear her family had in trying to bury her sister because they had all been labelled a family of informers. By association, the family had been stigmatised, and had to suffer both the death of their daughter/sibling and the moral alienation of not being able to remain part of the community which had sanctioned her murder. ‘The [Commission] created a space for them to speak and embraced them as victims but it did not address whether social healing could ever occur between them and the local community which had evicted them.’[48]
Public testimony is attempted as a strategy of social reconstruction and national renewal through truth commissions. However, testimonies are witnessed by diverse audiences — international advocates, apologists and victims. This necessarily results in different interpretations making individual stories of suffering remain vulnerable to counter interpretations and appeals, thus hindering national healing for the victim and national healing. Reconciliation is contingent on attentive witnessing.[49]
Aung San Suu Kyi, when questioned whether she can envisage a truth commission in the authoritarian State of Burma, said she believed truth and reconciliation go together.
I think in every country which has undergone the kind of traumatic experience that we have had in Burma, there will be a need for truth and reconciliation. I don’t think that people will really thirst for vengeance once they have been given access to the truth. But the fact that they are denied access to the truth simply stokes the anger and hatred in them. That their sufferings have not been acknowledged makes people angry.[50]
It is essential that the perpetrators of human rights violations — from all sides — participate in the Commission’s process. Otherwise the goal of confronting the past, of renewing the country by looking at the truth, will be hampered. Without such participation, this forum will be viewed as a scapegoating process fostering resentment between various factions, as not all grievances will be aired or accorded the same acknowledgment. Without a true understanding of what everyone has suffered, forgiveness, which is a fundamental aspect toward working for peaceful coexistence, will be elusive. Suu Kyi has said that, ‘once the truth has been admitted, forgiveness is far more possible. Denying the truth will not bring about forgiveness, neither will it dissipate the anger in those who have suffered.’[51]
Forgiveness requires knowledge of what is to be forgiven and forgiveness has deep roots in morality and religion.[52] There is an understandable reluctance among some victims to forgive. Without an element of forgiveness, wounds cannot heal, and people will not be able to peacefully coexist. Even if people are not fully reconciled with one another, it is better that space be created within which dialogue and mutual reciprocity can take place to discuss contentious issues without resorting to violence. Building peace means learning how to disagree without treating one another disrespectfully. This depends on the attitudes of all sides to one another. Without this space for dialogue, intolerance and discrimination will again manifest itself in violence, so not permitting people to live without fear.
The pursuit of justice and reconciliation in East Timor is multifaceted. The pressure for an international human rights tribunal to prosecute perpetrators of the 1999 violence has been effectively halted at the time of writing by the establishment of a human rights court in Indonesia. Megawati’s recent decree adhering to the international community’s call to lift temporal restrictions will allow the trial of suspects which Komnas Ham named as being involved in the first five documented cases of human rights violations in 1999. On one hand the Indonesian tribunal could foster reconciliation between East Timor and Indonesia. On the other hand, there are inherent difficulties involved in having an Indonesian court trying cases of violations committed in East Timor. Reconciliation between Indonesia and East Timor will be difficult if the Indonesian judiciary continues to pass lenient sentences and the Indonesian authorities remain reluctant to allow for the transfer of people to East Timor for the purposes of prosecution as requested by UNTAET’s Special Crimes Investigation Unit. It is likely that UN Secretary-General Kofi Annan and the Security Council will continue to allow the Indonesian judicial process a chance before establishing an international human rights tribunal.
The establishment of a Commission for Reception, Truth and Reconciliation in East Timor is intended to promote national reconciliation and healing. Victims will be able to tell of their suffering and be heard and acknowledged, thus regaining their dignity. The Commission is to have sensitivity to nuances to local culture, and decisions may have the symbolic force which sentences passed as a result of prosecutions outside the country may not.
The contribution the Commission can make towards the process of justice in the future is important: preparing the groundwork for the prevention of future abuses, making a human rights culture part of the institutions, and strengthening the rule of law. Decades of ingrained thought and practice will not be overcome quickly. Far more than a truth commission will be necessary to heal wounds and create conditions for a just society. A change in expectations, and in institutions, is required to reduce the likelihood of the repetition of such abuses in the future, as well as official measures to promote reconciliation and reparation.[53]
[*] Victoria Coakley is a former lawyer at the Office of International Law, Federal Attorney-General’s Department, Canberra and currently based in New York.email: vicck@hotmail.com©2001 Victoria Coakley
[1] Kohen, Arnold and Taylor, John, An Act of Genocide: Indonesia’s Invasion of East Timor, Tapol, London, 1979, pp.45-6.
[2] For example, SC Res 384, 30 UN SCOR, UN Doc S/Res/384 (1975); GA Res 3485, 30 UN GAOR, UN Doc A/Res/3485 (1975); GA Res 31/53, 31 UN Doc, GAOR, UN Doc A/31/362 (1976); GA Res 32/24, 32 UN GAOR, UN Doc A/32/357 (1977); GA Res 37/30, UN GAOR, UN Doc A/37/51 (1982).
[3] General Assembly, Identical Letters Dated 31 January 2000 from the Secretary-General addressed to the President of the Security Council and the Chairperson of the Commission on Human Rights, UN Doc S/2000/59, A/54/726, 31 January 2000 [Commission of Inquiry Report], para 9, p.7.
[4] See Norwegian Refugee Council, Internal Displacement in Indonesia and East Timor: New Profile Summary, 8 August 2001 <http://www. reliefweb.int> .
[5] Dodd, Mark, ‘And Justice for all: Dili backs international war crimes tribunal’, Sydney Morning Herald, 22 June, 2001.
[6] SC Res 1272, 54 UN SCOR (4057th mtg), UN Doc S/RES/1272 (1999).
[7] Commission on Human Rights resolution 1999/S-4/1, Situation of human rights in East Timor. UN Doc E/CN.4/RES/1999/S-4/1, 27 September 1999.
[8] Commission of Inquiry Report, above, ref 3, p.31.
[9] Commission of Inquiry Report, above, ref 3, para 153, pp.32-33.
[10] Commission of Inquiry Report, above, ref 3, para 155, p.33.
[11] Commission of Inquiry Report, above, ref 3, para 7, p.3.
[12] Presidential Decree No. 53/2001, 23 April 2001.
[13] See UN Security Council, Security Council discusses current situation in East Timor and tasks leading up to election on 30 August, UN Doc SC/7061, 18 May 2001.
[14] See Agence France-Presse, Megawati sanctions Timor crimes trials, 4 August 2001.
[15] Commission on Human Rights, Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, UN Doc E/CN.4/2001/37, 6 February 2001 [Report of the High Commissioner 200], para 13, p.5.
[16] See UNTAET, East Timor: Backgrounder — Justice and serious crimes, Dili, 9 July 2001 [Backgrounder 9 July 2001], and UNTAET Daily Briefing 08 August 2001 <http://www.reliefweb.int> .
[17] Backgrounder, above, ref 16, 9 July 2001.
[18] See UN Security Council, Progress Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2001/719, 24 July 2001, para 31-2, p.7.
[19] UN Security Council, above, ref 18, para 30, p.6.
[20] See Margalit, Avishai, ‘The Decent Society and Its Enemies’, unpublished paper, The Hebrew University of Jerusalem, 1999, pp.2-3; and extracts from Margalit, Avishai, The Decent Society, Harvard University Press, 1996, in Law Between Fear And Hope: Supplementary Readings, Session 2/1999, at 27-40.
[21] See Bronkhorst, Daan, Truth and Reconciliation: Obstacles and Opportunities for Human Rights, Amnesty International Dutch Section, 1995, pp.85-9 for examples of commissions and the result of inquiries conducted between 1971 and 1995, pp.85-9.
[22] Hayner, Priscilla B., Fifteen Truth Commissions — 1974-1994: A Comparative Study, (1994) 16(4) Human Rights Quarterly 600-11, 613-33, 635-55, in Neil J. Kritz (ed), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 1995, p.226 [Transitional Justice].
[23] UNTAET, Daily Briefing, 10 August 2001.
[24] UNTAET, Daily Briefing, 10 August 2001.
[25] Humphrey, Michael, From Terror to Trauma: Commissioning Truth for National Reconciliation, School of Sociology, UNSW, 1999, pp.1-2.
[26] Humphrey, above, p.3.
[27] Benomar, quoted in Mary Albon, ‘The Charter Seventy-Seven Foundation — New York, Truth and Justice: The Delicate Balance — Documentation of Prior Regimes and Individual Rights, October 30– November 1’, 1992, pp.15-18 in Transitional Justice, above, ref 22, p.290.
[28] Sarkin, Jeremy, ‘The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in Rwanda’, (1999) 21 Human Rights Quarterly at 798.
[29] Chayes, Abram, in Henry J. Steiner (ed), Truth Commissions: A Comparative Assessment, Harvard Law School Human Rights Program, 1997, p.69.
[30] Tamir, Yael, in Henry J. Steiner (ed), above, ref 29, p.71.
[31] Steiner, H.J. in Henry J. Steiner (ed), above, ref 29, pp.72-4.
[32] Fateh Azzam, in Henry J. Steiner (ed), above, ref 29, p.77.
[33] Mendez, Juan, ‘Review of a Miracle, A Universe’, by Laurence Wechsler, NYL Sch, (1991) 8(2) J. of Human Rights 577 at 583.
[34] Zalaquett, Harvard Comparative Assessment, pp.16-17; see Krygier, Martin, Between Fear and Hope: Hybrid Thoughts on Public Values, ABC Books, 1997, chapter 4, ‘Pride, Shame and Decency’.
[35] Lopes, Anciento Guterres, ‘Reconciliation from a Legal Perspective’, (21 June 2000) 1(1) The La’o Hamutuk Bulletin at 2.
[36] Margalit, Avishi, The Decent Society and Its Enemies, unpublished paper, The Hebrew University of Jerusalem, 1999, p.3.
[37] Sarkin, above, ref 28, p.797.
[38] Hayner, Priscialla B., above, ref 22, p.227.
[39] See Hayner, above, ref 22, at 225; Rotberg, Robert, in Henry J. Steiner (ed), above, ref 29, p.23, discussing the three C’s: cleansing, community (reconstruction of civic culture), and consolidation of a democracy; see Hehir, Aryan, in Henry J. Steiner (ed), above ref 29, discussing catharsis and moral reconstruction, p.24.
[40] Burgenthal, Thomas, The United Nations Truth Commission for El Salvador, (1994) 27(3) Vanderbilt Journal of Transnational Law 498-507, 510-544, in Transitional Justice, above, ref 22, p.321.
[41] Sarkin, above, ref 28, p.797-8.
[42] Hayner, above, ref 22, p.228.
[43] Zalaquett, Jose, in Henry J. Steiner (ed), above, ref 29, p.30.
[44] Hayner, above, ref 22, pp.229-30.
[45] Burgenthal, above, ref 40, p.321.
[46] Burgenthal, above, ref 40, p.325.
[47] Tamir, Yael, in Henry J. Steiner (ed), above, ref 29, pp.16-17.
[48] Tamir, Yael, in Henry J. Steiner (ed), above, ref 29, p.17.
[49] Humphrey, Michael, above, ref 25, pp.23-4.
[50] Hope for the Enemy, The Nation, 8 July 1997 (extracts from Aung San Suu Kyi, The Voice Of Hope, Conversations with Alan Clements, Seven Stories Press, 1998).
[51] Aung San Suu Kyi, above, ref 50.
[52] See Bronkhorst, above, ref 21, p.41.
[53] See Hayner, above, ref 22, p.230.
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