|Subject: MULR: Creation of a Viable
Criminal Justice System in ET
The Melbourne University Law Review recently published a 59-page article entitled "Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor." The article is by Suzannah Linton, a former UNTAET Serious Crimes Unit prosecutor. She discusses UNTAET Regulation 2000/15 and UNTAET's performance in serious crimes prosecution.
To read it on the internet, go to http://www.etan.org/action/issues/h-rights.htm and activate the link for either the HTML or the downloadable (317K) PDF format.
Following is its abstract and conclusions.
Under the trusteeship of the United Nations, East Timor is inching its way towards independence. The challenges faced by the East Timorese and the United Nations Transitional Administration in East Timor cannot be overstated. A nation has had to be built from out of the ruins left after the violence of September 1999 which followed the overwhelming public rejection of autonomy within Indonesia in the historic referendum of August 1999. One of the pillars of a successful democratic state is a properly functioning criminal legal system that is, and is publicly perceived to be, fair and just. This paper examines the establishment of a criminal legal system in East Timor, and its viability, through several key laws and identified themes. In a situation where a people have endured massive violations of human rights in the course of their exercise of the right to self-determination, the process of dealing with those atrocities will have a profound effect on the emerging state and its long-term political and social stability. This examination therefore places particular emphasis on the process that has been chosen by the United Nations Transitional Administration for prosecuting atrocities committed in East Timor through the District Court of Dili. Exciting, ground-breaking work is being done by the United Nations Administration in East Timor, and its efforts to establish a criminal justice system are rich in both achievements and lessons to be learnt.
The Secretary-General has identified the establishment of a credible system of justice in which fundamental human rights are respected as a benchmark for assessing the success of UNTAET in East Timor. This draws in two separate issues: the creation of a viable system and the successful management of that system. From the report of the Security Council Mission, it is clear that, despite remarkable achievements in the creation of a system from scratch, UNTAET still has a long way to go with respect to managing that system in accordance with international standards:
While UNTAET has made progress in developing a court administration system, prosecution services, public defender’s system and prison services, the judicial sector remains seriously under-resourced. Consequently, the current system cannot process those suspects already in detention, some of whom have been held for almost a year. Moreover, UNTAET is facing significant difficulties in bringing to justice those responsible for the serious violations of human rights that occurred in East Timor in 1999. In these circumstances, it is particularly important for UNTAET to consider all available ways of attracting the necessary resources and that decisions on handling serious crimes investigations should, to the extent possible, reflect East Timorese expectations.
In light of these findings, the SRSG promised to undertake a review of the judicial sector and to report to the Security Council with proposed solutions. It is hoped that more will come out of this than the internal investigation carried out by the SRSG’s office in September 2000 into the malfunctioning of the judicial affairs sector, from which no report or recommendations have emerged. The review offers an opportunity to carry out a genuine, informed and far-reaching audit of the system, and to design realistic and concrete proposals for reform and improvement. It is also important that lessons from mistakes are learnt, and that the review considers how the UN itself can contribute to the success of a peacekeeping mission like UNTAET, for example, by providing it with adequate means and the competent staff to fulfil its particularly ambitious and demanding mandate.
In its examination of the creation of a criminal justice system in East Timor, this paper has followed three identified themes: the degree of consultation with the East Timorese in the decision-making process; the ability of the existing and incoming system to cope with the laws it is expected to enforce; and the investment in human skills that is being undertaken in order to empower the East Timorese to manage their own country after independence. Through this analysis, the problems of the system have been brought to light. The picture that has emerged bodes ill for the future of East Timor.
One of the lessons of East Timor is that appearances can be deceptive. The fact that judges, prosecutors and defence counsel have been appointed to put UNTAET’s laws into effect does not mean that there is a viable system. The fact that atrocities are being prosecuted does not mean justice is finally being delivered to the people of East Timor. Beneath the surface, much is amiss. There is a real danger that the mere fact of the creation of institutions has led to a false sense of accomplishment, and raised public expectations to a level which the institutions are not capable of satisfying. It does indeed seem that UNTAET’s efforts have gone into creating the institutions of state and making vital decisions on behalf of the East Timorese, rather than creating the conditions in which they are truly empowered to choose the kind of nation and system they wish to have. The Security Council’s Mission cited serious under-resourcing as the reason for the malfunction of the criminal justice system. This paper has shown that under-resourcing, while a major cause, is by no means the only reason for the malfunction. Key contributing factors have been a persistent failure to consult in a genuine and meaningful way with the East Timorese, the inability of the existing system to cope with the demands placed upon it and inadequate investment in training and skills. Only a few of the problems can be explained away as being due to the bureaucratic and inflexible institutional nature of the UN. Despite the Secretary-General’s call on UNTAET to make necessary amendments to current legislation, always in consultation with the East Timorese, much unnecessary tampering with the underlying framework has occurred.
Indonesian law is not progressive in terms of international human rights standards, but once the offending laws and provisions are removed it provides a workable base for the transitional period. UNTAET’s hybrid system has resulted in confusion, contradiction and legal uncertainty. This has, in the case of arrest and detention procedures, resulted in the violation of fundamental human rights. In all of this, there seems to be a tendency to rush legislation through in a reactive manner, without thinking through the issues and consequences. Another major contributing factor has been that inexperienced jurists were appointed to positions of great responsibility as judges, prosecutors and public defenders, with enormous demands made of them, without adequate training to equip them for the task. Complaints about the standards of professionalism demonstrated by the East Timorese jurists are misplaced; the finger should be pointed at those who have not equipped them to do the job properly. A radical overhaul of the philosophy and mechanisms of training adults ‘on-the-job’ needs to be considered. It is also most unfortunate that, through a longstanding failure to provide basic support to the East Timorese jurists, UNTAET has in fact alienated those whose loyalty and respect it desperately needs in order to make the system work.
In the rush to establish a criminal justice system, insufficient consideration seems to have been given to whether the system being designed is one that is feasible for East Timor and in line with the expectations of its people. The Serious Crimes project best illustrates the need for UNTAET to take a more realistic and practical approach that considers the actual conditions in East Timor. It is highly commendable to have a ‘state of the art’ legal regime for prosecuting international crimes in domestic courts but, before embarking on the exercise, it is fundamental to consider whether the existing (or incoming) system can support such a venture. One cannot but wonder at how, even with international assistance, an independent East Timor is expected to cope with continuing this extraordinarily costly and time-consuming experiment in international justice. In a still fragile and volatile society, dangerously high expectations have been created. Failure of the enterprise may have serious consequences for the future peace and stability of East Timor.
The prosecution of Serious Crimes under Regulation 2000/15 is a highly creative venture. Hampered as it is by the many problems that have been identified in this paper, it retains the potential to blaze the way for this new mechanism to bring accountability for international crimes even closer to affected communities. It is a testing ground for the effectiveness of many of the provisions of the Rome Statute. But, more than anything else, this venture can be regarded as the litmus test of UNTAET’s commitment to accountability, justice and rule of law. After many months of being in limbo, the Serious Crimes process is now receiving some of its much needed equipment and personnel. Indictments have now been filed at the District Court of Dili and cases are progressing to court. Yet, the task continues to be an overwhelming one and the effort seems merely to be scratching the surface. Difficult issues still remain and questions need to be answered. Will a crippled enterprise that satisfies no one do irreparable harm to the future peace and stability of East Timor? Can justice be done if these crimes are pursued as ordinary domestic crimes instead of international crimes? Will the prosecution ever be in a position to focus on those truly responsible for the atrocities — the civilian and military leaders who have now fled East Timor? Do the proceedings uphold international standards of fair trial? In particular, is there ‘equality of arms’ between prosecution and defence, and are the rights of the accused sufficiently protected? Will more locals be trained to take over this process themselves or will it continue to be an international operation until the end of UNTAET’s mission?
As this paper has revealed, complaints about UNTAET’s persistent failure to consult in a genuine and meaningful way with the East Timorese, the inability of the existing system to cope with the demands placed upon it and inadequate investment in training and skills are not new or isolated. The East Timorese are perhaps the most vocal of its critics. In all fairness, it must be stressed that UNTAET has responded positively to the criticism and has begun taking steps to rectify some of the mistakes of its early days. It has moved away from its early tendency towards benevolent paternalism, which sidelined the East Timorese. For example, the discussions on reconciliation and a constitution have been widely consultative in a way not previously seen. ‘Timorisation’ has become a key objective of the mission, with East Timorese gradually being moved into leadership positions. As noted, the Serious Crimes Unit is now receiving material and human resources and this is starting to pay off with the start of proceedings before the Special Panels of the District Court of Dili. In the remaining months of UNTAET’s mandate, recently renewed until 31 January 2002, there is thus reason for cautious optimism that the efforts being made will improve the situation.
The issues faced by UNTAET are among the most exciting and challenging that the UN has ever faced. In many respects, its achievements have been remarkable in the short time that it has been in existence and in light of the conditions under which it has operated. Groundbreaking work, such as that arising from the prosecution of Serious Crimes at the District Court of Dili, has the potential, if allowed to function properly, to change fundamentally the course of international justice. The challenge for UNTAET is to encourage public confidence in its work and institutions by making the system fair, effective and transparent, and by demonstrating accountability by acting decisively on the problems within the criminal justice system. Although it appears to be taking positive steps to address highlighted shortcomings, UNTAET still needs to increase genuine consultation and meaningful East Timorese participation in key decisions, review its approach to law-making, improve its administration of the criminal justice system, and redouble its efforts to train the East Timorese. It is morally bound to ensure that the criminal justice system it bequeaths to the East Timorese at independence is one that is worthy of their terrible struggle for freedom.
Charles Scheiner, U.N. Representative International Federation for East Timor
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