(In)Justice and the Struggle for Accountability

by John M. Miller

East Timor’s Serious Crimes Unit (SCU) finally did what Indonesian prosecutors have failed to do. On Feb. 24, the United Nations-established unit indicted ranking Indonesian military officials for orchestrating the violence before and after East Timor’s independence vote in 1999.

The SCU indictment charged General Wiranto (Defense Minister and armed forces chief at the time) and six other military commanders with crimes against humanity for murder, forced deportation and persecution “undertaken as part of a widespread or systematic attack directed against the civilian population of East Timor and specifically targeted those who were believed to be supporters of independence for East Timor” in 1999.

Indonesian officials were predictably dismissive. Foreign Minister Hassan Wirayuda said his government would "simply ignore" the indictments. Another cabinet member said trials would damage relations with East Timor.
Even some important East Timorese leaders have been less than supportive. While voicing respect for the independence of the prosecutors and courts, they expressed strong concerns about the impact of the indictments on relations with Indonesia. Foreign Minister José Ramos-Horta thus quickly flew to Jakarta to smooth Indonesia’s ruffled feathers.

The United Nations’ first official reaction was to disassociate itself from the SCU by stating that the indictments were solely East Timor’s responsibility. But on April 10, a spokesperson clarified that the UN “attaches the highest importance to the successful completion of the investigation and prosecution of serious crime cases, as mandated by the Security Council. The indictments are prepared by international staff who report functionally to the Prosecutor-General of Timor-Leste, and are issued under the legal authority of the Timorese Government.”

The United Nations Transitional Authority in East Timor (UNTAET), which ruled East Timor up until independence, established the SCU and Special Panel courts to hear its cases. After independence, the UN retained authority to investigate and prosecute serious crimes committed through 1999 in the post-independence, UN support mission, UNMISET, through Security Council Resolution 1410.

Thus far, the SCU has issued 60 indictments at the Special Panel for Serious Crimes charging a total of 248 persons; More than 30 have been convicted; but most, including all Indonesian military officers, remain out of reach in Indonesia which refuses to extradite anyone.

The ability of the SCU to complete its work remains up in the air. The office is set to expire with UNMISET next year. Unless its mandate is renewed and funding found, even ongoing trials might have to end.

Meanwhile, the SCU continues to issue further indictments. On April 10, the serious crimes prosecutor indicted five East Timorese TNI soldiers for the rape of five East Timorese women, highlighting an important issue that was neglected in the Indonesian prosecutions. The five soldiers are believed to be currently living in Indonesia. (This was the SCU’s fourth indictment for rape. In late April, East Timor’s truth and reconciliation commission held a special hearing devoted to violence against women during the Indonesian occupation.)

Despite the apparent progress, the Special Panels, the courts in East Timor that are trying those accused of serious crimes, remain hampered. One of the international judges resigned, leaving the court with insufficient judges to conduct trials.

Jakarta-style Justice

At this writing, Indonesia's ad hoc Human Rights Court on East Timor has acquitted 11 of 14 Indonesian defendants tried thus far. The light sentences handed down for the five people convicted (including the only two East Timorese defendants) have not been commensurate with the crimes committed; four defendants received less than the legal minimum under Indonesian law. All remain free pending appeal. The final two verdicts are expected soon.

The defendants were primarily accused of failing to prevent the actions of others rather than for acts they may have directly committed. The prosecution repeatedly described the violence in 1999 as the result of conflict among East Timorese factions and portrayed the UN administration of the referendum as biased and anti-Indonesian.

Criticisms of the Jakarta court are wide-ranging. ETAN and other human rights groups have noted that the top-ranking officers and officials named by Indonesia's own human rights commission in January 2000 were never seriously investigated, much less indicted. The prosecution failed to make use of vast amounts of UN documentation available to them as evidence.

Sergio de Mello, UN High Commission for Human Rights and former UNTAET administrator, issued a report criticizing “the limited geographical and temporal jurisdiction of the Court; the lack of experienced prosecutors and judges; the intimidating and, at times, hostile, courtroom treatment of Timorese witnesses by some judges, prosecutors and defense counsel; the causes and consequences of non-attendance of Timorese witnesses at the proceedings; and the lightness of the sentences imposed, which bear no reasonable relationship to the gravity of the offences committed.”

He added that “the failure to put before the court evidence that portrays the killings and other human rights violations as part of a widespread or systematic pattern of violence seriously undermines the strength of the prosecution’s case and jeopardizes the integrity and credibility of the trial process.”

The UN’s Special Rapporteur on the independence of judges and lawyers recently wrote that the prosecutions violate “the principle that prosecutions are to be undertaken in good faith,” He called the investigations “insufficient” and criticized witness protection procedures.

However, the UN Human Rights Commission, while expressing “disappointment” in the ad hoc court, called on Indonesia to “improve the current legal processes;” in effect urging Indonesia to fix the unfixable. Follow up is unlikely as the Commission decided to limit next year’s agenda to consideration of technical cooperation with East Timor in the field of human rights.

The Future

The final verdicts in the Jakarta process are due in late April / early May. Soon thereafter, the UN Secretary-General is expected to go to the Security Council with a recommendation for future action.

It is clear that neither of the processes set up to try those responsible for crimes have delivered anything approaching justice for the suffering visited upon the East Timorese people. Jakarta lacks the political will and trust from the victims; the serious crimes process in East Timor is hampered by a lack of resources and the refusal of Jakarta to extradite. Nether has addressed the many crimes that took place before 1999.

Throughout most of Indonesia’s occupation, the United Nations and the powers that dominate the world body failed to enforce Security Council and General Assembly resolutions as the East Timorese suffered. In 1999, the international community assured the East Timorese that they would be safe during the independence referendum. But the UN-brokered agreement left Indonesia in charge of security, helping make possible the post-ballot destruction. After the vote, the UN took responsibility for establishing a system of justice in East Timor. Without real action from the UN and its most powerful members, the failure to effectively prosecute the masterminds of the systematic abuses in East Timor will end up as just one more broken promise to the people of East Timor.

While ETAN urges the U.S. and the UN to actively pursue the extradition and prosecution of all those indicted by the Serious Crimes Unit (SCU) currently residing in Indonesia, ETAN also continues to press for an international tribunal as the best way to bring to justice Indonesian officials accused of committing war crimes and crimes against humanity in East Timor from 1975 on. And countries, like the United States, that supported Indonesian brutality with weapons, military training, and economic and diplomatic support must also account for their actions.

Without full accountability, other peoples are more likely to suffer the horror from which the East Timorese people are now free.

For more information see www.etan.org/action/issues/h-rights.htm.