South China Morning Post Sunday, August 20, 2000

Comment

Victims of militia cry for justice

Photo: Victims of violence: the first trials for human rights violations will cover the massacre at the Suai church, the memorial for which took place this month. Associated Press photo

JOANNA JOLLY in Dili

Over dinner in West Timor's top hotel, former East Timorese militia intelligence chief, Elly Cater Ana, has a question: "Which countries can give me political immunity?" His question and obvious anxiety indicate how, a year after the violence that followed the United Nations sponsored ballot on independence, the East Timorese militia, which played a part in the atrocities, are beginning to feel the net tightening around them.

But whether this fear extends to the Indonesian generals and government officials who planned the systematic destruction of the territory, using the militia as their proxy army, is less certain.

Despite an ongoing Indonesian investigation into gross human rights violations in East Timor, indications so far are that Indonesia has neither the political appetite nor legal apparatus to see Indonesian perpetrators tried.

"Indonesia has no precedent to try human rights cases, which works to the advantage of those in Indonesia who do not want to see the Government or military brought to justice," says East Timorese human rights campaigner Joaquim Fontesca.

Immediately after East Timor descended into violence last September, the UN High Commissioner for Human Rights, Mary Robinson, travelled to Darwin, northern Australia, to speak to refugees, prompting her to call for the establishment of an international war crimes tribunal.

But her call was rejected by UN Secretary-General Kofi Annan, who took the decision to place the responsibility for justice in the hands of an Indonesian investigation.

"If the Indonesian authorities go ahead and proceed with what is a credible trial, I do not believe the council would want to set up another international tribunal," Mr Annan said when he visited the East Timorese capital Dili in February.

According to the Indonesian Attorney-General's office in Jakarta, which has taken over the investigation, indictments for five preliminary cases can be expected at the end of this month.

"At this time we are still meeting to decide who the first defendants will be," says Yusha Yahya, a spokesman for the team.

Although indictments will mark a positive step in the process, already criticised by human rights groups for being too slow and ineffective, they will also test its credibility.

The first five cases are: an attack on the house of pro-independence leader Manuel Carrascalao a few days after he was involved in signing a peace deal with militia and the Indonesian military in April last year, and in which his son was killed; attacks on hundreds in the town of Liquica, also in April; the sacking and burning of Bishop Carlos Belo's house where many East Timorese were sheltering in Dili in September last year; the death of Dutch journalist Sander Thoenes, allegedly shot by Indonesian troops in Dili shortly after international peacekeepers arrived, also in September; and in the same month, a massacre of hundreds of people seeking shelter at the Suai church outside Dili.

If only militia and low-ranking military officers are named in these indictments, it is likely that human rights groups and the international community will reinstate calls for an international tribunal. "There are military and police involved directly in most of the first five cases, the question is whether Indonesia will indict those responsible further up the chain of command," says one Western analyst.

Even before the August 30 ballot in East Timor last year, there was ample evidence to connect the militia with the Indonesian military and government.

Journalists who had been working in East Timor in the year up to the vote reported that visits by top military officials to provincial towns in East Timor were followed by the establishment of militia armies which received arms, funding and training from the military.

A document leaked to the UN mission in East Timor in July last year, signed by Indonesian Government official H. R. Garnadi and addressed to the then Minister for Politics and Security, outlined a plan of destruction of all "vital objects" in East Timor should the vote be lost to independence.

During the violence immediately after the vote, the Indonesian military was observed systematically burning buildings and forcing hundreds of thousands of East Timorese across the border into Indonesian West Timor, while at the same time they told the outside world they were attempting to maintain order through martial law.

This plan even included using military planes and commercial airlines Boraq, Garuda and Merpati to fly about 4,000 refugees on 12 flights a day from Dili to Kupang in West Timor. "We were forcing people on to planes who did not want to go. It must have cost the Government a fortune," says a Merpati officer who was responsible for co-ordination at Dili's airport.

At first there were positive signs that those responsible would be brought to justice. The results of an Indonesian Human Rights investigation released in January named 33 militia, local government officials and military personnel responsible for the violence, including the then Chief of Indonesia's armed forces, General Wiranto.

But since then, the Attorney-General himself, Marzuki Darusman, has hinted it is unlikely that senior military figures would be charged.

The problems facing the Indonesian investigation do not only concern who will be indicted. Last week's amendment to the Indonesian constitution and the continuing lack of any current human rights legislation has led rights groups to question whether Indonesia has the legal apparatus to try the Government or military.

The amendment voted by Indonesian parliamentarians bans retroactive prosecution of human rights cases. This means not trying those responsible for past crimes committed when there were no laws to cover those crimes.

Although non-retroactivity is a principle recognised by governments around the world, activists worry that in Indonesia it will be used to block any trials of military personnel.

"This new amendment will prevent the prosecution of the East Timor cases in a human rights court," says Asmara Nababan, Secretary-General of Indonesia's National Commission on Human Rights.

However, he points out that there is still an opportunity to try the cases under draft human rights legislation being considered in Indonesia. This legislation is due to be passed by the Government in the next few months.

"If this happens soon, I have not lost hope," says Mr Nababan.

But the proposed human rights legislation does not come without its own problems. Although it provides for ad hoc human rights courts to be established, this can only be done by presidential and parliamentary decree, placing the process directly under political will. And there is no guarantee that the Bill will be passed in time to try the East Timorese cases.

In East Timor itself, calls for justice remain strong, as Mrs Robinson discovered herself on a recent visit. "Justice came up at every single meeting and I am not surprised because I remember hearing secondhand, not witnessing directly myself, terrible human rights violations, and that is not something that you can put out of your mind," she said when asked if she was shocked by the insistence of the calls.

The next few months will prove a testing time for the Indonesian justice process. If there are neither indictments of senior figures nor the passing of the new legislation, those monitoring the process will increasingly ask whether it meets Mr Annan's criteria of credibility.

If not, human rights organisations and the international community will increase its pressure to move the investigation to a special tribunal in East Timor itself which, with international judges, prosecutors and defenders, will function as a de facto international tribunal.

And the process will be watched very closely in East Timor, where human rights campaigner Mr Fontesca wonders if he will ever see real justice for the murder, destruction and violence of last year.

"There has to be justice in East Timor. Not just for the East Timorese, but for the whole world community," says Mr Fontesca.

"It must be allowed to create a precedent that can work for universal human rights in order to ensure there are no further violations."

Joanna Jolly is a Jakarta-based journalist.

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