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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]
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Introduction
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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.
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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).
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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.
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Chapter One
History of the Conflict in Timor-Leste and Legal Responsibility
for Serious Crimes Committed
during 1999
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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.
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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
Harris Rimmer and Tomaras, 1. 28
Ibid.; Australia was the only nation to unilaterally recognise
Indonesias invasion. 29
Tomodok, 356. 30
Harris Rimmer and Tomaras, 1. 31
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 Introduction, note 9. 37
See Chega!, Part 7.5, 47-48.
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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
Robinson, Peoples war, 272. 44
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).
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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, Crimes Against Humanity, 68. 47
Robinson, Peoples war, 302. 48
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
Dunn, Crimes Against Humanity, 70. 56
Crouch, 152; Kingsbury, 72.
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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
Robinson, Peoples war, 277. 60
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).
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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
Robinson, Peoples war, 275. 68
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].
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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
Robinson, East Timor 1999, 258. 112
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
Robinson, East Timor 1999, 261. 115
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
See Introduction, note 8. 127
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
Hirst and Varney, 9. 151
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
Hirst and Varney, 8. 159
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
Commission of Experts Report, [148]. 180
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
Hirst and Varney, 23. 184
Commission of Experts Report, [131]. 185
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
Hirst and Varney, 12. 189
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