New York Times, 22 October 2000 Week In Review section

And Justice for All? By SETH MYDANS

DILI, East Timor -- The possibilities are sadly dissonant: An Indonesian general is found guilty in East Timor but innocent in Indonesia. A low-level militia member receives a long prison term in East Timor for his thuggery while his high-ranking commander in Indonesia slips free.

Outcomes like this seem almost guaranteed if a fledgling process of parallel prosecutions moves forward, as promised, in the land of the victims and in the land of the victimizers in response to last year's destructive rampage in East Timor. There may eventually be trials and there may even be punishments in Indonesia and in East Timor, but justice for the atrocities in East Timor is beginning to seem elusive.

"And what happens then?" a Western diplomat asked. "What is international opinion going to say?"

Already the United Nations has warned it is prepared to step in with its own international tribunal if Indonesia fails in its promise to punish its perpetrators. Should that happen, Indonesia, the world's fourth most populous nation, with 210 million people, would join the ravaged states of Rwanda and the former Yugoslavia as a target of international justice, with senior officials reluctant to travel abroad for fear of arrest.

But the United Nations faces difficult political hurdles in establishing a tribunal for Indonesia, with several important nations prepared to vote against it. Critics fear Indonesia may try to wait out the international pressure, doing only just enough to pacify the demand for trials.

For some people here, Indonesia's promise of domestic justice is an uncomfortable echo of its guarantee last year that it would police East Timor's independence referendum. Instead, Indonesia armed and orchestrated the militias that laid waste to East Timor, a former Portuguese colony, while insisting it could do nothing to stop them. This is a tactic the Indonesian military had used before and appears to be using again now in other troublesome areas: recruit and arm ragtag local gangs to enforce its will through terror and violence.

Only a few apologists still assert that the military's hands were clean. Even in Indonesia, where the issue has caused a wave of nationalist denial, an independent panel and the attorney general's office have named long lists of suspects that include senior officers in the military and the police.

The crimes of East Timor were remarkable for their audacity, carried out under the eyes of the United Nations, which organized and administered a referendum in August 1999 in which the former colony voted to end 24 years of occupation by Indonesia. A program of pre-election intimidation and killings was followed, after the vote, by a campaign of revenge, in which most of the territory's buildings were ruined, perhaps 1,000 people killed, scores of women raped and more than a quarter of the population of 800,000 forcibly transported across the border into Indonesian West Timor.

Yet one year later, though it has named 22 suspects, Indonesia has issued no indictments. And it has aroused new anger by allowing abuses by militias to continue in the refugee camps of West Timor. Some of those abusers — the same militia leaders who led the East Timor rampage — are being hailed in Jakarta as nationalist heroes for their opposition to Timorese independence.

Now, in their very different political contexts, separate investigations and separate judicial processes have begun in both nations. Yet each faces what could be insurmountable obstacles to success.

In Indonesia, though the attorney general seems serious about prosecution, a United Nations legal expert said the courts — and the attorney general's office — were so corrupt and unprofessional it might be difficult to meet international standards of justice. In addition, the accusations reach high into the leadership of the military and the police, who could stymie the process.

In East Timor, now governed by a United Nations "transitional administration," a panel of foreign judges has prepared indictments and is said to have evidence in several atrocities. "But they don't have the main perpetrators or witnesses," said Patrick Burgess, the human rights administrator for the United Nations here. "That's the big hole in their case."

The two nations have agreed on paper to cooperate in the prosecutions. But this would require events that analysts say are virtually impossible to imagine: Indonesia extraditing its generals to East Timor for trial; East Timorese witnesses traveling safely to Indonesia to testify against these generals.

"The problem is that the key defendants, in both the military and the police, are either in Jakarta or West Timor," said Joe Saunders, deputy Asia director for the New York lobbying group Human Rights Watch. "Right now, it's inconceivable that Indonesia would make one of those guys available for trial in East Timor. It would be a national scandal."

The Indonesian legislature added another hurdle in August when it passed a constitutional amendment banning war crimes and crimes against humanity — but barring retroactive prosecutions.

This means Indonesian courts may only be able to bring charges under ordinary criminal statutes against murder, rape or arson. As a result, legal experts said, it may be harder to prosecute high-placed commanders who were far from the action. And any lower-level suspects found guilty could receive lighter sentences.

Some people, like the East Timorese foreign minister, Jose Ramos-Horta, have lost patience. "Absolutely nothing has been delivered in terms of justice for the many thousands of victims in East Timor," he said recently at the United Nations. "The Security Council, for its own sake, for its own credibility, must now begin to move towards establishment of a war crimes tribunal for East Timor."

But, as it did last year, when the Indonesian-led militias ravaged East Timor, the United Nations may find itself constrained by political reality, forced to stand by and watch as justice is abused.

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