Vol. 7, No. 2
ETAN Continues Legislative Efforts
Will East Timor See Justice?
by Charles Scheiner
Eighteen months have elapsed since the Indonesian military and its militia proxies devastated East Timor. A quarter century has passed since the U.S.-supported Indonesian invasion of East Timor began an occupation which killed one-third of the population and kidnapped, raped, tortured and terrorized hundreds of thousands more. Uncountable crimes against humanity have been committed in East Timor since 1975 by Indonesian forces, with the complicity of the world's "great powers." It is a record which cries out for justice.
Indonesian incapacity, international reluctance
The Indonesian government is besieged from many sides. Acehnese and West Papuans are demanding self-determination, internal conflicts rage in Kalimantan and Maluku, atrocities are rampant in all these areas and elsewhere. The military is desperately struggling to keep its Suharto-era power. It's not surprising that President Wahid and his Attorney General Marzuki Darusman have achieved little headway in bringing the architects of East Timor's invasion, occupation and destruction to justice.
In January 2000, an Indonesian government commission named suspects, going up to the highest levels of the military, for the 1999 violence in East Timor. Four months later, Indonesia signed an agreement with the UN Transitional Administration in East Timor (UNTAET) to cooperate in supplying witnesses and transferring suspects. On April 25, 2000, the chairman of the UN Human Rights Commission lauded Indonesia's promises to prosecute crimes against humanity committed in East Timor and to cooperate with UNTAET. Many were hopeful the rule of law would emerge in Indonesia, and that criminals would be brought to justice. Indonesian pro-democracy activists urged the international community to support judicial processes in the archipelago.
The rest of 2000 saw a steady decline in Indonesia's willingness and/or capability to achieve justice. No prosecutions have occurred, nor have any indictments been handed down. Indonesia amended its constitution to make it almost impossible to convict military officers for past crimes or for command responsibility. Indonesia refused to cooperate with UNTAET, whose investigators have traveled to Jakarta several times. Witnesses - including military officers and notorious militia leader Eurico Guterres - refused to answer questions. Although UNTAET shares information with Indonesian prosecutors, endangering East Timorese who testified in confidence, Jakarta has not reciprocated. According to the U.S. State Department Human Rights Report on Indonesia for 2000, "The Government has not prosecuted any persons in connection with the militia-related crimes in West or East Timor dating back to 1999, although the Attorney General in September and October named 23 persons as suspects in East Timor human rights cases." At press time, five months later, there is still no progress.
Since the Indonesian system perpetuates impunity, ETAN is calling on the United States and other nations to create an international tribunal to try those responsible for serious human rights abuses and crimes against humanity in East Timor since 1975. This was the number one priority of the East Timorese NGOs I met with in December and January, and is also ETAN's highest goal.
Senator Tom Harkin (D-IA), Representative Lane Evans (D-OH) and others have introduced a concurrent resolution (S. Con. Res. 9 / H. Con. Res. 60) calling for the United States to "endorse and support the establishment of an international criminal tribunal for the purpose of prosecuting culpable Indonesian military and police officers and personnel, leaders of local militias and paramilitary organizations, and other individuals who are responsible for crimes against humanity in East Timor, including systematic murder, rape, and terrorism, the unlawful use of force, and crimes against United Nations personnel deployed in East Timor and in the refugee camps of West Timor." This resolution is non-binding, but it is an important tool to reinvigorate calls for a tribunal.
Is the Crimes Unit Serious?
UNTAET has established a "Serious Crimes Unit" to investigate and prosecute murder, rape and other major offenses in East Timor. It is focusing on a few high-profile crimes from 1999, but many doubt the SCU can even successfully pursue those. The unit is inadequately funded and staffed, and plagued with mismanagement and incompetence which leads many to doubt its seriousness of purpose.
A delusion based on a distorted view of East Timor's history pervades UNTAET and many foreign governments and journalists. It has three main elements: (1) forget everything which occurred before January 1999, (2) grant de facto amnesty (by amnesia, insufficient political will, or incompetence) to Indonesia and other governments who committed, directed or supported crimes against East Timor, and (3) blame an alleged East Timorese "culture of violence" for human rights violations and atrocities. UNTAET's Serious Crimes Unit exemplifies this perspective.
I attended the first day of Serious Crimes trials, January 10 in Dili District Court. The defendant, 22-year old militia member João Fernandes, pled guilty to premeditated, deliberate murder of village chief Domingos Gonçalves Pereira in Maliana on September 8, 1999. The killing was part of an organized attack by the Dadarus Merah Putih militia which took dozens of lives.
The trial featured inadequate translation, inexperienced defense attorneys, arrogant foreign prosecutors, and poor process. The presiding judge, from Italy, seemed to have little interest in the organized nature of the crime; the judge from Burundi said nothing. The East Timorese judge, Natércia Gusmão, urged that the defendant be charged with crimes against humanity, but her colleagues outvoted her, resulting in an indictment for simple murder. On the third court date (the second adjourned for lack of an interpreter), the prosecution requested 10 years because the defendant was cooperative. On January 25, the judges handed down 12 years. On March 1, João Fernandes sawed through the roof of his cell and escaped. He is probably in Indonesia, and prosecutors fear he may pass on damaging information to his militia colleagues.
The under-resourced judicial system is fraught with problems. The SCU seems oblivious to systematic military execution of the 1999 destruction, failing to develop cases or obtain Indonesian cooperation against Indonesian military officers. As East Timor moves toward nationhood, it will need to look further than Dili or Jakarta for examples of a system based on the rule of law.
Reconciliation without justice
UNTAET is rapidly moving to implement a "Truth, Reconciliation and Reception Commission" (TRRC) that is of limited utility. Although one of the consultants for this project is a former executive of the South African Truth and Reconciliation Commission, there are major differences between the two. One similarity is the scale: both are projected to have around 300 staff people, a huge project for a country as small as East Timor.
The TRRC will have two principal tasks. The first is to take testimony from victims of crimes committed between 1974 and 1999, and to prepare a report on these crimes. Although the report will probably not explore the chain of command (the Commission is not likely to obtain military documents or testimony from Indonesian sources), it will document the scale and horror of Indonesia's occupation, including but not limited to the post-ballot destruction.
The more controversial Reconciliation component is limited to people not accused of serious crimes (rape, murder, systematic multiple arson) who choose to live in East Timor. If the prosecutor's office decides they are eligible for the TRRC process, they can confess their crimes and be given a restorative sentence (such as rebuilding a house they destroyed), after which it is hoped that their community will forgive them. This restorative justice is modeled on traditional East Timorese custom, and is an attempt to compensate for the impossibility of handling tens of thousands of cases via the judicial system. This process, which UNTAET is rushing to set up during the transition rather than allowing an independent East Timor to design its own process, aims to encourage low-level militia and pro-integration people to return from West Timor, with the assumption that the Reconciliation process will dissuade villagers from inflicting vigilante justice.
But most East Timorese are amazingly willing to welcome even those who committed mayhem (under Indonesian military direction) home. Even most militia leaders would be accepted, provided they acknowledge the vote for independence. The East Timorese know who ravaged their country - and are frustrated by ineffective attempts to hold Indonesian military officers accountable. Of the 175,000 who have returned from West Timor, only a few dozen have been harassed or assaulted. Although militias killed thousands and burned most of East Timor's buildings in 1999, only four returnees have been killed in retaliation, all before April 2000.
The fear which keeps many of the 100,000 refugees still in West Timor from returning is inculcated by armed militias whose propaganda, threats and violence mislead the refugees about what they would face in East Timor (see West Timor Refugee Crisis Continues). The TRRC, whatever its merits, will not end the disinformation.
Justice is not only achieved in the courts. It should be present in day-to-day interactions between the powerful and the powerless members of society. In this regard, the UN Transitional Administration fails badly. After more than a year of sovereignty over East Timor, UNTAET has learned little. Many of the international staff of the UN and other large institutions and agencies in East Timor are racist, sexist, rushed and arrogant. They don't care to learn the language, history, culture, needs or desires of the people they are ruling, and don't bother to ask the population for direction or ideas. Although there are exceptions to this generalization, those who fit the pattern are ubiquitous and reappear on every large UN mission. The problems have systemic causes.
UN workers, hopping from one trouble spot to another, give loyalty to the mission; their priority is their career. Many have six-month contracts, and almost all will be gone when independence comes in early 2002. They rush to complete tasks before they leave and do not think about who will do the work after they are gone.
The UN brought 180 international workers to East Timor to canvass households for a "civic registration" database. Though called "volunteers", these foreigners are paid many times what it would cost to hire an East Timorese worker who would do a better job and still be around next year. Foreign workers don't know the language, geography, or people, and can't find their way around. Given the 80% unemployment rate for East Timorese, this is outrageous.
UNTAET international staff make 50 times as much as East Timorese doing the same jobs. The UN says low East Timorese wages - usually less than $10 a day - are necessary so that East Timorese workers don't become accustomed to a lifestyle which cannot continue after the UN leaves. But prices have tripled because international staffers make $300 a day or more. A new economy has developed to soak up this excess cash - container and cruise ship hotels, car rentals, cell phones, satellite TV, restaurants, weekends in Bali - dominated by expatriate Australians who will take their profits home when the UN departs. Little of the money stays in East Timor, and no permanent or sustainable development results. For example, the UN imports millions of plastic water bottles from Indonesia - filling the streets with litter - but potable water systems haven't been repaired. Most other infrastructure (roads, electricity, telephones, houses, commercial buildings not used by the UN) remains as devastated as in September 1999, after TNI and its militias burned 75% of the country.
UNTAET recently directed its local and international personnel not to talk with anyone outside the mission about anything relating to East Timor. This is not the first example of a culture of secrecy in the transitional authority: UN staffers have been threatened with dismissal for discussing the reasons for Dili's electricity being off more than half the time (there are random blackouts in different neighborhoods; apparently the UN didn't budget enough money for diesel fuel).
UNTAET is mandated to prepare East Timor for independence and should be "helping, not doing" as they train East Timorese to take over their jobs. But UN staffers are used to working in disaster areas, with ostensibly helpless victims of war and catastrophe. They do not see East Timorese people as triumphant in a long and often heroic struggle against a neighbor 200 times their size.
La'o Hamutuk, ETAN and others are pushing UNTAET to understand and avoid the most egregious aspects of international behavior, and to see how they can be a part of the solution, rather than the problem.
Eventually, East Timor will triumph over the damage wrought by UNTAET, its fourth foreign occupation in 60 years. But is this an appropriate legacy for the international community to leave its newest member?
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