Alternative Law Journal
A researcher from the Commission for Reception, Truth and Reconciliation in East Timor interviewing community members in the isolated town of Mauxiga asked an elderly man how old he was. ‘Two hundred,’ the man replied. ‘Are you sure?’ the researcher said. The man paused. ‘More than two hundred’, he declared.
After a period of relative security in East Timor, the past few months have seen a dramatic shift towards political instability and humanitarian crisis. Since April this year, over 20 people have been killed and as many as 150,000 have fled their homes. Political allegiances have dissolved with alarming speed. Prime Minister Mari Alkatiri reluctantly offered his resignation to President Xanana Gusmao on 26 May 2006 and Jose Ramos Horta was named East Timor’s new Prime Minister on 8 July 2006.
A sense of great uncertainty and distrust appears to have developed among the political elites of Dili. Simultaneously, the political instability has provided an opportunity (and possibly the motivation) for open gang warfare on the streets of Dili. An unlikely rift between ‘Loro S’ae’ (East) and ‘Loro Mono’ (West) has emerged, with many declaring loyalty to one or other of these identifiers that even six months ago were rarely mentioned.
There are countless theories circulating within East Timor and beyond about the causes of the current political instability and violence. Some theories focus on the slow speed of economic development since independence, others tend more towards international conspiracy. A key question now emerging is the extent to which the recent instability and violence can be attributed to the failure of East Timor and the international community to adequately deal with this new nation’s violent and bloody past.
In 1999, the world was rocked by images of violence following an overwhelming vote for independence in East Timor. For the people of East Timor, this was just the latest episode in their long struggle for independence.
Shortly after Portugal announced plans to begin the process of decolonisation of the territory in 1974, East Timor was invaded by Indonesia and annexed as its 27th province. During 24 years of Indonesian rule, extensive evidence of human rights violations came to light, including forced displacement, widespread famine, massacres, rape and torture.
Indonesia finally relinquished control in 1999 following a UN–supervised referendum that revealed overwhelming support for independence among the people of East Timor. The withdrawal of Indonesian troops was accompanied by a violent ‘scorched earth policy’, carried out in the main part by pro-Indonesia ‘militia’ groups.
Following the deployment of an international force, the UN Security Council established the United Nations Transitional Administration in East Timor (UNTAET), a body vested with full legislative and executive power. UNTAET remained in power until an 88-member Constituent Assembly was elected in 2001.
One of the first acts of UNTAET in 2000 was the establishment of a Serious Crimes Unit to investigate and prosecute murder, rape, torture and crimes against humanity committed in East Timor during 1999. But the Serious Crimes Unit’s limited mandate, its lack of resources and the fact that most of those accused of orchestrating the violence had fled to Indonesia meant that its ability to effect ‘justice’ was seriously hampered.
In recent years, many countries undergoing transition in a post-conflict context have turned towards non-legal, localised justice mechanisms. Often, this is because more traditional retributive forms of justice (such as criminal prosecutions) are politically or practically impossible. But restorative justice mechanisms can also go beyond legal discourses to incorporate religious, medical and psychological approaches to dealing with the effects of violence on communities.
Truth commissions function primarily as restorative justice mechanisms. Since the early 1970s, some form of official truth commission has been established in over 20 countries.
In June 2001, the National Council of Timorese Resistance unanimously passed a regulation to establish a Commission for Reception, Truth and Reconciliation in East Timor.
The UNTAET regulation establishing the Commission in law gave its six appointed East Timorese Commissioners three core responsibilities.
First, they would undertake truth-seeking. The Commission’s mandate was to inquire into violations of international human rights standards, violations of international humanitarian law and ‘criminal acts’ in the context of political conflicts in East Timor, occurring between 25 April 1974 (the date of Portugal’s ‘Carnation Revolution’) and 25 October 1999.
Second, they would assist with reconciliation by establishing Community Reconciliation Processes, allowing those accused of perpetrating ‘non-serious’ crimes to appear before a panel of local community leaders in return for limited immunity from civil suit and criminal prosecution.
Finally, they would formulate recommendations, to be submitted in a final report, on matters relevant to their work with the aim of preventing the repetition of human rights violations.
The Commission was housed in a large concrete building in Dili that under Indonesian rule had operated as a prison. Many of the original features were retained – the dank, dark isolation cells; large tanks used for water torture; graffiti left behind by independence supporters detained after the Dili massacre in 1991; and, according to many of the local staff, its fair share of ghosts.
Under Indonesian rule, there were no East Timorese judges. UNTAET went so far as to organise leaflet drops from aeroplanes seeking people with legal qualifications as candidates for a new, East Timorese judiciary. Not surprisingly then, most of the local staff at the Commission had no legal training, let alone familiarity with international law.
This made application of the Commission’s mandate, which was based unambiguously on international law, a real challenge. Even locating copies of basic human rights instruments in an accessible language (such as Indonesian) proved surprisingly difficult.
Applying international law was even more challenging. As part of its truth-seeking mandate, the Commission recorded 8000 statements from across the country. Each of these statements was then dissected so that statistics on violations could usefully be drawn from the information. In order to ‘code’ the information, I worked with a small team of local staff to identify (and distinguish) various violations under international human rights law and international humanitarian law.
Many of the local staff in this team found it difficult to reconcile international legal concepts with their own lived experiences of the conflict in East Timor. In some South American truth commissions, families of the disappeared refused to acknowledge that these people had, in all probability, been killed. The Argentinean Commission report even listed disappeared victims by the age they would have been at the time the report was published. In contrast, some of the Commission staff in East Timor had trouble accepting that under international law, the status of disappeared persons is not equivalent to them having been murdered. Of course we know they are dead, they told me, these are our family members.
We examined a statement about a group of resistance guerrillas who had been captured by Indonesian soldiers. As they were led down the mountain by the soldiers, the guerrillas placed a curse on their captors. Surely, reasoned a local staff member, the curse would amount to a violation of international human rights law?
We had a long and heated discussion about whether the practice of Indonesian soldiers cutting off the hair of resistance guerrillas (who deliberately grew their hair long as an expression of defiance and comradeship) amounted to ‘cruel, inhuman or degrading treatment’ under international law.
One of the most successful activities of the Commission, which made no reference to international law, was the facilitation of Community Reconciliation Processes (CRPs), designed to reconcile perpetrators of non-serious crimes with their communities.
The CRPs were a voluntary process. They were based on the concept of ‘biti bot’, referring to the large woven mat used by local chiefs as common ground for community members involved in disputes. Sitting together on the biti bot, a panel of community leaders would listen to the stories of victims and perpetrators. The perpetrators were questioned closely by the panel and by the community on their participation in the violence. The panel then consulted with the victims to determine an ‘act of reconciliation’ to be performed by the perpetrators.
One of the CRPs I attended took place in a small village called Matata. It involved 12 men who had participated in the burning of homes and the intimidation of civilians during 1999. Two shelters had been constructed on the side of a hill out of tarpaulins and palm-leaves, one for the participants and the other for the local community. The village leader explained that after the ceremony, the perpetrators would be welcomed into the ‘higher’ shelter, symbolising their reception back into the community.
The perpetrators were visibly nervous and faced the community (rather than community leaders) to narrate their part in the violence. The local community watched, listening intently and asking many questions of clarification. Together with the victims, the panel decided that the appropriate ‘act of reconciliation’ was for the deponents to assist the community in building a wooden flagpole; the whole village would then raise the new flag of East Timor and a big party would be held.
At the end of the ceremony, the deponents lined up in front of the most senior elder present, who spat some red betel juice out, making the sign of the cross with it on the palm of each deponent. The deponents worked their way around a large circle of people including the panel, the victims and the elders, hugging each and pressing cheeks. It was a deeply emotional ceremony, and by the end many of the participants were crying.
The Commission delivered its report, entitled Chega! (meaning ‘Enough!’) to President Xanana Gusmao in October 2005. The report is over 2000 pages. It presents detailed analysis of the 8000 statements taken, the various public hearings held on thematic issues (such as ‘Famine and Forced Displacement’ and ‘Self-determination and the International Community’) and the 1371 perpetrators who participated in community reconciliation processes facilitated by the Commission. The report estimates that over 100,000 East Timorese people died as a result of Indonesia’s occupation.
As required under the establishing regulation, President Gusmao presented the report to the Secretary General of the United Nations on 20 January 2006. However, the East Timorese government has continued to vacillate on the public release of the report. An unverified copy was posted on the website of the International Centre for Transitional Justice on 30 January 2006 and in February 2006 Xanana Gusmao provided copies of the report to foreign embassies, international institutions and human rights groups.
Reducing the impact of the Commission’s report even further, in August 2005, the governments of Indonesia and East Timor established a new ‘Truth and Friendship Commission’ comprising five Indonesian and five East Timorese members. Its mandate is to investigate events taking place from January 1999 to December 1999, to seek reconciliation and to work towards forging a lasting friendship between the two nations. It has no prosecutorial powers. The mandate of the Truth and Friendship Commission has been extended following the recent violence.
With the haphazard approach to public distribution of the report to date, together with the establishment of the Truth and Friendship Commission, the public education campaigns proposed by the Commission for dissemination of its findings have not happened. There is no clear indication of the East Timorese government’s future plans for the report.
The recent instability presents a direct threat to the work of the Commission. On 30 May 2006, Prosecutor General Longuinhos Monteiro reported that a large number of files detailing evidence against those accused of the violence in 1999 had been looted from the Serious Crimes Unit office in Dili. Fearing a similar occurrence at the Commission’s offices, which house a vast amount of original written and audio-visual material recorded by the Commission, assistance from the Australian Defence Force was sought. Australian troops have been constantly monitoring the Commission’s offices.
The unsettled political climate also provides a convenient distraction for the government of East Timor from its obligations to disseminate the Commission’s report and implement its recommendations. Indeed, ongoing instability is likely to divert national and international attention away from the issue of justice for past atrocities in East Timor.
It is still too early to be making definitive statements about the causes of the recent crisis in East Timor. But it is clear that civic trust in East Timor’s public institutions — in particular, parliament, the army, the police and the judiciary — has dropped to an all-time low over the past few months.
Civic trust in public institutions requires a shared sense of the values that underpin those institutions. This is especially important where particular public institutions have, in the past, been perpetrators of human rights violations. In East Timor, the parliament, the army, the police and the judiciary are institutional arms of a new, independent government. But given East Timor’s recent past, it is understandable that these institutions are tainted with a degree of public distrust and suspicion.
Pursuing justice for past atrocities is essential for the restoration of victims’ dignity, to ensure that perpetrators do not enjoy impunity and to demonstrate that the rule of law is upheld. But it is also an essential step towards ensuring public confidence in East Timor’s new public institutions. It is therefore imperative that the issue of justice for past atrocities remains on the agenda for East Timor.
Ukun rasik a’an is a Tetum phrase that was used in East Timor throughout the Indonesian occupation. It is one of those difficult-to-translate phrases, encompassing concepts of sovereignty, self-determination, self-sufficiency and independence. It has an almost sacred significance in East Timor, referring to the ultimate goal of hundreds of long years’ struggle against colonial domination, undertaken for the most part with virtually no international support.
Various criticisms have been levelled at East Timor’s Commission. The East Timorese NGO La’o Hamutuk raised a concern that the Commission might absorb resources that would otherwise be available to the judiciary, potentially undermining the process of justice. It is clear that executing the Commission’s onerous mandate in a limited time-frame meant heavy reliance on international donors and international expertise.
Restorative justice mechanisms such as truth commissions need to be genuinely controlled and owned by local communities if they are to assist those communities in coming to terms with the past. Despite the criticisms levelled at the Commission, the fundamental basis for its operation reflects the concept of ukun rasik a’an. It was established as an East Timorese institution, led by East Timorese Commissioners and employing many East Timorese staff. The Commission’s report, drawing directly on the stories of individuals who provided statements, reflects this grass-roots approach.
The responsibility now falls on the government of East Timor and on the international community to ensure that the work begun by the Commission is completed. The recent instability must be viewed as providing more (and not less) reason for pursuing justice for past atrocities.
Public dissemination of the report within East Timor, accompanied by extensive public education campaigns, is a key recommendation of the Commission. Dissemination by the government of East Timor will represent a formal acknowledgment of those who have suffered human rights violations in the past. It will also contribute to the development of a culture based on respect for human rights.
The Commission recommends that the UN should be prepared to institute an international tribunal if other measures aimed at delivering justice are deemed to have failed. To date, there is no indication that any measures aimed at delivering justice for past atrocities in East Timor have succeeded. The government of East Timor has made it clear that it is in no position to press for an international inquiry. The international community must now step up to ensure that there is no impunity for those accused of committing international crimes in East Timor.
As the story at the beginning of this article demonstrates, ‘truth’ can be a slippery concept. But the problems inherent in reaching an accepted and official account of the past do not justify ongoing impunity and the denial of justice. Formal acknowledgment of the past by the government of East Timor and the international community is essential if the people of East Timor are to look towards a brighter future.
ROWAN MCRAE worked as an Australian Youth Ambassador for Development at the Commission for Reception, Truth and Reconciliation in East Timor in 2003–04.
© 2006 Rowan McRae