Alternative Law Journal
NEHAL BHUTA[*] discusses the difficulty of achieving justice for post-1999 human rights violations in East Timor.
In August 1999, the population of the former Portuguese territory of East Timor voted overwhelmingly for independence from Indonesia, in a United Nations-sponsored referendum. The vote came after 25 years of a brutal and illegal occupation by the armed forces of the Republic of Indonesia, which annexed the territory in December 1975 with United States' diplomatic support.
The war of invasion and subsequent occupation were characterised by the commission of gross human rights abuses by the Indonesian armed forces, including systematic torture, acts of extermination against the civilian population, conscription of non-combatants as human shields, widespread sexual violence and extrajudicial executions.
After the fall of Suharto and Indonesia's economic collapse in 1998, Indonesia's new President B.J. Habibie frustrated with continued international criticism of the occupation of East Timor-made a hasty decision to permit a referendum on whether East Timor would remain part of Indonesia. Almost immediately, Indonesia's military command began organising 'black operations' in order to coerce the East Timorese population to vote in favour of integration with Indonesia. From the beginning of 1999, armed militia groups favoring integration with Indonesia expanded operations against pro-independence East Timorese, and committed grave human rights violations against the civilian population with the intention of thwarting the free conduct of the popular consultation. After the announcement of the ballot results in early September 1999, pro-integration paramilitaries and the Indonesian military implemented a 'scorched earth' campaign that forcibly displaced over 200,000 persons, systematically destroyed civilian infrastructure and resulted in the deaths of at least 1500 people.
The report of the International Commission of Inquiry on East Timor, the joint reports of the Special Rapporteurs of the Commission on Human Rights and the report of the Indonesian Commission of Investigation into Human Rights Violations (KPP HAM) all concluded that the violence and human rights violations of 1999 formed part of a carefully planned and implemented Tentara Nasional Indonesia (TNI) policy to obstruct the free participation of the East Timorese in the popular consultation of August 1999, through the formation, arming and coordination of paramilitary groups. Between January and October, the paramilitary groups, with direct and indirect participation of the TNI, engaged in an escalating campaign of extrajudicial killings, disappearance, torture and sexual violence, punctuated by multiple killings (Cailaco, Maliana, Suai, Liquica, Dili and elsewhere).
The joint report of the Special Rapporteurs recommended that, in the absence of prompt action by Indonesia to bring those responsible to justice, the Security Council should consider the creation of an international criminal tribunal of the kind established for the former Yugoslavia and Rwanda. The International Commission of Inquiry for East Timor recommended the establishment of an investigation and prosecution body to further document the crimes of 1999, potentially leading to the creation of an international criminal tribunal. The United Nations Secretary-General declined to follow either of these recommendations, and instead accepted assurances by the newly elected government of Indonesia that 'there would be no impunity for those responsible'. Indonesia stated that it would establish a specialised domestic court to try Indonesian nationals accused of committing international crimes in East Timor in 1999.
When East Timor was placed under UN administration in October 1999, the United Nations Transitional Authority in East Timor (UNTAET) established the Serious Crimes Investigation Unit (SCU) to investigate and prosecute the crimes of 1999. The SCU is composed mostly of international staff under the leadership of the Deputy General Prosecutor for Serious Crimes (also an international post, currently held by Norwegian prosecutor Siri Frigaard). People indicted by the SCU are tried before the Special Panel for Serious Crimes, a division of the Dili District Court that is composed of international and East Timorese judges. The Special Panels have exclusive jurisdiction over 'Serious Crimes', which are defined by UNTAET Regulation 15 as including war crimes, torture, crimes against humanity and genocide (as defined in the Rome Statute of the International Criminal Court), as well as murder and sexual offences (as defined in the Indonesian Penal Code in force in 1999). The Special Panels are thus an 'internationalised' domestic court: each panel (there are currently three operating) applies a combination of local and international law, and is presided over by two international judges and one East Timorese judge.
District level consultations conducted in 2001 indicated that there was a strong demand for formal justice among victims of the 1999 violence. Victims and victims' relatives interviewed by the author in early 2002 also expressed the view that justice would best be served by the prosecution of those most responsible for the crimes, namely, Indonesian military personnel who played a command and control role in the orchestration of the violence. At the same time, however, East Timor's leadership has shown a distinct reluctance to publicly demand greater efforts by Indonesia to prosecute suspects from the Indonesian military. As one senior UN official (interviewed in January 2002) stated, the international community could be forgiven for believing that justice was not a priority for the present Government of Timor Leste. With vulnerable land and sea borders, and substantial economic ties to Indonesia, the former colony cannot afford to antagonise its erstwhile master. Viewed pragmatically from the perspective of the East Timorese leadership, aggressive pursuit of leading Indonesian military figures -many still in active service -may not be in the best interests of the new nation.
The Government of Timor Leste's sense of vulnerability is heightened by indifference or hostility among international and regional powers (such as the US and Australia) towards holding the Indonesian military accountable. Australia is desperately trying to rebuild its strategic relationship with Indonesia after the rift caused by Australia's role in bringing about armed intervention in 1999, while in the aftermath of September 11 the US sees the Indonesian military as an ally in the war against terrorism. US military assistance to the Indonesian military has recently resumed, while Australia recommenced military and intelligence cooperation in early 2002.
The UN-sponsored Serious Crimes Process has failed to meet Timorese expectations for justice. In their first two years of operation, the SCU and Special Panels were hampered by severe resource constraints, poor management and a lack of outreach and accessibility. An organisational restructure in early 2002 relieved many of the management problems and increased the efficacy of the investigations unit, but both the investigators and judges remain under-resourced. The SCU has over 1300 cases from the 1999 period alone. It has had no choice but to prioritise investigations of the ten most serious incidents (such as the Liquica and Suai church massacres, and the attack on the house of Manuel Carrascalao). The Deputy Prosecutor for Serious Crimes aims to complete the investigation and indictment of suspects in the ten 'priority cases' by June 2003, after which time the SCU is likely to begin phasing out its operations in preparation for the end of the peacekeeping mission in 2004. The Special Panels have completed a number of murder cases (mostly low-level militia members detained by INTERFET in October 1999), but only one crimes against humanity trial has been tried due to the considerable resources required to conduct such complex proceedings. The lack of sufficient court resources for transcription, translation and legal research has raised doubts about the extent to which the trials are able to meet international standards of fairness. The Court of Appeal has not functioned for over 18 months, due to a failure to replace international judges whose contracts had expired. As a result, no person convicted of a crime during this time has been able to appeal his conviction or sentence.
As at March 2003, the SCU had issued 50 indictments, including indictments relating to seven of the ten 'priority cases'. The indictments charge 170people, of whom 145 are accused of crimes against humanity. On 24 February 2003, the SCU indicted six senior Indonesian military figures, including former defence chief Wiranto, Major General Zacky Anwar Makarim, Brigadier General Tono Suratman, and Brigadier General Adam Damiri. These are the most senior Indonesian military figures ever to be indicted, but the indictments also demonstrate the principal limitation on the work of the Special Panels: a lack of cooperation from Indonesia and the absence of any means, to compel the transfer of indictees. Approximately 60% of those indicted by the SCU are believed to reside in Indonesia, but Indonesia has refused to cooperate in the arrest and transfer of suspects.
No extradition treaty exists between the Government of Timor Leste and Indonesia, and a Memorandum of Understanding on cooperation in judicial affairs signed between UNTAET and Indonesia in April 2000 has been disavowed by the Government of lndonesia. No diplomatic pressure has yet been brought to bear on Indonesia to compel it to cooperate with the UN-sponsored process, which, unlike the ad hoc international criminal tribunals, has no Security Council-sanctioned enforcement mechanism. In the absence of Indonesian cooperation-or some means to require it -it is unlikely that the Serious Crimes Process will be able to hold accountable those most responsible for the crimes of 1999.
As the Dili-based prosecution process unfolded, Indonesia's assurance that there would be no impunity for military officers has proved hollow. The Indonesian Commission of Investigation into Human Rights Violations (KPP-HAM)  report of January 2000 identified 32 individuals as suspects in crimes committed in East Timor in 1999, but of these only 18 were ultimately indicted by the Indonesian Attorney-General. It was March 2002 before the ad hoc court established to try these indictees began hearing the cases. The proceedings, however, were compromised from the start, as the court's jurisdiction was geographically and temporally limited such that it was empowered to hear only five incidents from among the many crimes committed in 1999.
The conduct of the trials themselves has led some experienced observers of Indonesian politics to suggest that the Attorney-General had willfully failed in his duty to seriously prosecute the cases.
The indictments were sloppily drawn, and avoid alleging that the accused had any direct role in the commission of crimes against humanity. Rather, the violence is portrayed as flowing from antagonisms between pro-independence and pro-integration East Timorese, which military officers failed to adequately contain. The trials have thus failed to draw upon the considerable body of evidence pointing to the Indonesian military's direct involvement in planning and perpetrating the international crimes, and have reinforced the widespread view in Indonesia that the 1999 violence was primarily a consequence of divisions within the East Timorese. The absence of a witness protection program, and the hostility towards East Timorese witnesses tolerated by judges during some trials, have made East Timorese eye witnesses reluctant to testify. Of the 17 verdicts delivered in Jakarta, 12 have been acquitted and 5 convicted: two East Timorese pro-integration leaders, two middle ranking Indonesian security force officers, and one senior Indonesian military officer, with prison sentences ranging from three to ten years. The one defendant still to be tried, Brigadier General Adam Damiri, has consistently failed to appear at his trial and is now coordinating the TNI offensive in Aceh. It is unlikely that any of those convicted will serve a term of imprisonment, and all remain free pending appeals.
On East Timor's long awaited day of national independence, its leading human rights NGO Yayasan. HAK issued a statement lamenting that 'East Timor is gaining independence without gaining justice, and without seeing any hope that there will ever be justice'. Recent efforts by both the UN headquarters in New York and the Government of Timor Leste to disavow any connection with the indictments of high-ranking TNI officers by the SCU on 24
February 2003 suggest that this pessimism is not exaggerated. Almost four years have passed since the UN Secretary-General deferred consideration of an international criminal tribunal to give Indonesia the chance to prosecute its own. In light of East Timor's poverty and political vulnerability, it is unfair to expect its new government to shoulder the political and financial costs of bringing senior Indonesian military figures to justice. The time has come for the Secretary-General to return the question of justice for East Timor to the Security Council for action.
Harris and Pace in the following Brief argue that returning the issue of justice for East Timor to the Security Council would be 'impractical' and recommend instead 'technical cooperation' with the Ad Hoc Court in Jakarta, and more resources for the Serious Crimes Process.
At a recent symposium on justice for East Timor convened in Melbourne, and attended by the UN, the Government of Timor Leste and NGOs, the unanimous view of Indonesian NGOs and close observers of the Jakarta trials was that 'technical assistance' would not correct the trials' fundamental jurisdictional or procedural flaws. The problem is one of political will, accentuated by inadequate institutions. A veneer of international expertise will do little to improve the process, but much to enhance Indonesia's (and Australia's) efforts to bury the issue. Moreover, the trials are basically over and initial appeals lie with the Supreme Court, a judicial body notorious for its corruption and conservatism. To whom should the technical assistance now be given?
More resources and a longer life span for the Serious Crimes Process (SCU) would be desirable, but the fundamental problem of Indonesia's contempt for the UN-mandated process remains. The Security Council has more options than establishing a tribunal: it could increase resources for the SCU, extend its life span and condemn Indonesia's failure to cooperate. Most importantly, returning the issue to the Council's agenda will create an opportunity to renew political pressure on Indonesia. As the TNI commanders who destroyed East Timor now orchestrate new crimes against humanity in Aceh, the need for accountability is as urgent as it was four years ago.
[*] Nehal Bhuta is a Fulbright Scholar and MA Candidate in Political Science at the New School for Social Research, New York.
© 2003 Nehal Bhuta.
 The extent to which the US gave Indonesia a 'green light' to invade was revealed by recently declassified records of meetings between then US President Gerald Ford and his national security adviser Henry Kissinger, and former Indonesian President Suharto. See <http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB62/> .
 The Indonesian armed forces are referred to interchangeably in this note as 'TN!' (Tentara Nasional Indonesia), 'the Indonesian military' and 'the Indonesian armed forces'.
 See Greenlees, Don and Garran, Robert, Deliverance, Allen and Unwin, Sydney, 2002, pp.136-41; McDonald, H., 'Defence finds Indonesian Commander linked to Timor violence', The Age, 14 March 2002, p.l
 Identical Letters Dated 31 January 2000 from the Secretary General Addressed to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, A/54126, S/2000/59, 31 January 2000.
 Situation of Human Rights in East Timor, N541660, 10 December 1999.
 Report of the Indonesian Commission of Investigation into Human Rights Violation, Jakarta, 31 January 2000.
 See also Forum Komunikasaun Feto Timor Lorosae (FOKUPERS), Progress Report Number I: Gender Based Human Rights Abuses During the Pre and Post-Ballot Violence in East Timor, January - October I999.
 See above, ref 4.
 See UNTAET Reg. 15 of 2000.
 See above, ref 6.
 See Human Rights Watch, 'Justice Denied for East Timor', Background Paper, 20 December 2002, <http://www.hrw.org/backgrounder/asialtimor/etimorl202bg.htm> .