May 18, 2002

Yayasan HAK 
Gov. Serpa Rosa T-091, Farol, Dili ­ Timor Lorosae 
Telp.: +670 390 313323 Fax.: +670 390 313324

Independence Day: Cause for Celebration or Damnation of 24 years of International Complicity in the Illegal Occupation of East Timor*

Today, as East Timor’s day of independence, is a dividing line between the past and the future. All that has come before this date will be called the pre-independence period and all that comes after will be called the post-colonial period. A midnight ceremony marks a moment in time as the starting point for a new nation ­ the world’s newest nation.

Yayasan HAK, a non-governmental organization for human rights and justice, welcomes all of the international delegations that have arrived to witness and celebrate East Timor’s independence. Together, as we stand on this dividing line in time, we should look back on East Timor’s past and look ahead to its future. We should cast our gaze backwards to understand how the East Timorese people have reached this point and we should cast our gaze ahead to think about where the East Timorese people are going.

We at Yayasan HAK wish to express in this independence day statement both the lessons that we have learned from the past and the hopes that we have for the future. While we are overjoyed that the national independence for which we have sacrificed so much is now at hand, we are filled with disappointment that no one has been held criminally responsible for any of the great crimes against humanity against our nation, from Indonesia’s invasion in 1975 to its scorched-earth withdrawal in 1999. We are filled with foreboding about the future when it appears that there are no effective international institutions to end the impunity for such serious crimes. East Timor is gaining its independence without gaining justice, and without seeing any hope that there ever will be justice.

We have by now lost nearly all hope that there will be an international tribunal for the crimes against humanity committed in 1999. Those crimes included the killing of over 1,000 people, the forced deportation of about 250,000 people, extensive plundering, and the destruction of about 70% of the country’s buildings. The UN Commission of Inquiry, in its report of January 31, 2000, recommended that an international tribunal be formed. The UN Security Council, however, has decided that the Indonesian government should be given the opportunity to put its own officials on trial. It no secret that powerful governments on the Security Council, like the United States, are opposed to an international tribunal. Thus, the United Nations pretends as if Indonesia’s farcical ad hoc tribunals are serious efforts to reach justice. (On the weaknesses of the ad hoc tribunals in Jakarta, see: The International Crisis Group, “Indonesia Briefing: Implications of Timor Trials,” May 8, 2002 )

Yayasan HAK had been hoping that an international tribunal would be formed with a broader purview ­ a tribunal that would investigate all the crimes against humanity under the Indonesian occupation. Now that we have little hope for an international tribunal covering only 1999, we have even less hope for one covering the entire 24 years of the occupation.

East Timor and the United Nations

East Timor is today receiving its independence from the United Nations. As a small nation in a world of far more powerful nation-states, East Timor depends upon the United Nations to uphold standards of fairness and international law. Our struggle for independence would have been far more difficult without the refusal of the United Nations to legitimate Indonesia’s occupation (its continued listing of East Timor as a non-self governing territory). East Timor has a strong interest in seeing a powerful and effective United Nations.

But East Timor, from its experience, also needs to recognize that the United Nations is a weak institution. After Indonesia’s invasion of 1975, the United Nations was powerless to enforce the resolutions passed by its General Assembly and Security Council, powerless to enforce the terms of its agreement in May 1999 with Indonesia and Portugal, powerless to fulfill its promise to remain in East Timor after the vote in August 1999, and powerless (so far) to hold an international criminal tribunal for those responsible for atrocities committed in East Timor. From our experience with the United Nations, we East Timorese can see that the United Nations has very limited powers in overriding the interests of powerful nation-states.

East Timor and the International Community of Nations

As East Timor today enters the international community of nations, we at Yayasan HAK are concerned about the rules by which this community functions. East Timor was under Indonesian military occupation for 24 years. That occupation was a great wrong yet many powerful nation-states allowed it to continue. Some even helped Indonesia strengthen its grip over East Timor. Our closest neighbor, Australia, granted de jure recognition to Indonesian sovereignty over East Timor and was prepared to profit from our oil. An international tribunal is needed not just to prosecute certain Indonesian officials, but to set the historical record straight about the complicity of other nations in the crimes against humanity that took place here.

Let us take the case of the most powerful nation-state in the world: the United States. The US government was consulted by President Suharto before launching the 1975 invasion. Suharto postponed the invasion until he obtained permission from President Ford and he launched the invasion within hours of receiving that permission (The documents containing transcripts of the meetings between Suharto, Ford, and Kissinger are available online at the National Security Archive website: www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB62). After the invasion, it was the United States that rendered the United Nations powerless to implement its resolutions demanding an Indonesian withdrawal. (The US ambassador to the UN, Daniel Patrick Moynihan, proudly recounted in his memoir, A Dangerous Place: “The US Department of State desired that the United Nations prove utterly ineffective in whatever measures it undertook [against Indonesia]. This task was given to me, and I carried it forward with no inconsiderable success.”). And, again, it was the United States that refused to use its power in 1999 to force Indonesia to comply with the May 5 agreement. Despite having detailed intelligence about the Indonesian military’s operations and plans, the United States did not take any concrete action to stop the Indonesian military from carrying out the scorched-earth campaign. (Hamish McDonald, “Spy intercepts confirm Government knew of Jakarta's hand in massacres,” Sydney Morning Herald, March 14, 2002.)

We at Yayasan HAK would hope that the United States and other powerful nation-states see a lesson in East Timor’s recent history. If international law had been upheld back in 1975 and had the decolonization process been allowed to continue, the tremendous suffering of the East Timorese could have been avoided. A genocide could have been averted. Today, East Timor is back where it was at the beginning, 27 years ago, only now devastated and traumatized by violence. There was no need for us to be put through that suffering. The lesson is that the right of national self-determination should not be trampled upon.

Has the United States and the other powerful nation-states learned this lesson? It does not appear so. The United States and the other allies of Indonesia have not admitted so far any wrongdoing with regard to its policy on East Timor. The independence of East Timor, as far as we can tell, not provoked any soul-searching self-introspection by the officials of these countries.

The East Timorese themselves would like to better understand why it was that Indonesia’s crimes were allowed to take place. Why did U.S. President Ford and his National Security Advisor, Henry Kissinger, permit the 1975 invasion? Why did they allow the United States to become complicit in a war of aggression? Why did President Carter agree to arm Indonesia with new Bronco helicopters in 1978, at the height of the Indonesian military’s assault on the East Timorese civilian population? Richard Holbrooke played an important part in that decision; he was then Carter’s Assistant Secretary of State for East Asian and Pacific Affairs and a principal architect of U.S. policy toward East Timor. (Brooke Shelby Biggs, “Timorese Skeletons in Holbrooke’s Closet,” Mother Jones, November 18, 1999; ) Suharto had promised Ford a quick operation back in 1975. Obviously, that was an incorrect calculation. Why did the Carter administration not realize that something had gone terribly wrong with Suharto’s promised “quick” operation? Why did his “human rights” administration not pay attention to our rights when we had by 1978 already proven our resistance to the Indonesian occupation?

There are so many questions that need to be answered. Now that Richard Holbrooke is here in East Timor, perhaps he could explain to our new nation precisely why the United States financially, diplomatically, and militarily aided the Indonesian aggression and genocidal occupation. What geo-political interests of America did our suffering serve? How did the people of the United States, Asia, and the world become safer because of Indonesia’s denial of our right to self-determination? Will United States government ever admit that its policy was criminal?

Richard Holbrooke, after the Indonesian military’s scorched-earth operation in 1999, demanded that Indonesia bring the culprits to trial. As the Clinton administration’s ambassador to the United Nations, Holbrooke told Indonesia: “Accountability is one of the two or three keys to democracy. . . You cannot deal with the future unless you also come to terms with the past.” (Press conference, Jakarta, November 21, 1999.) While we at Yayasan HAK criticize Indonesia for failing to hold its officials accountable for crimes, we also criticize the United States which has not set a good example. Why should Indonesia have any dedication to accountability when the United States itself refuses to hold its officials accountable? Will Holbrooke come to terms with his own past?

We have seen from our own experience that the rules of the international community are set by its most powerful nation-states and that such nation-states are often indifferent to international law when they perceive it as an impediment to their own self-interests. When it comes to East Timor, the powerful nation-states have always prioritized Indonesia’s interests over ours. Nothing appears to have changed much in this regard since Indonesia withdrew from East Timor. For instance, the Bush administration in the United States today desperately desires to reestablish military ties with Indonesia despite the fact that Indonesia has not brought the culprits of the 1999 crimes against humanity to justice ­ a precondition set by the US Congress.

Justice and the United Nations Transitional Administration of East Timor (UNTAET) 

Instead of supporting an international tribunal, the United Nations had supported two other methods of dealing with past crimes against humanity in East Timor: 1) the ad hoc tribunals held in Jakarta by the Indonesian government; and 2) special panels of the Serious Crimes Unit of UNTAET inside East Timor. The first method is obviously faulty, as has been noted above. What about the second method?

It has been widely acknowledged that the weakest part of UNTAET was its administration of justice. As a human rights organization, Yayasan HAK has been concerned precisely with the area where UNTAET’s performance turned out to be the worst. UNTAET’s Serious Crime Unit has been notoriously ineffective. In the two and a half years of UNTAET’s existence, there has been unsatisfactory progress in the investigation of crimes against humanity and the prosecution of suspects in East Timor.

In November 2000, the United Nations Security Council noted in a report that UNTAET’s administration of justice had “shortcomings.” When UNTAET issued a list of what it considered its “20 Major Achievements”, the prosecution of serious crimes was not among them. Sergio de Mello admitted in a January 30, 2002 report to the Security Council, “I know only too well that this is an area in which we have faced particularly significant problems.” In his most recent report of April 17, de Mello blamed the problems in the justice sector on contextual factors outside of UNTAET’s control: “lack of experienced national personnel, limited resources, and language barriers, particularly in the light of the four languages utilized in the courts.” Many other problems could be noted: incompetent international personnel, rapid turnover of international personnel, mismanagement, failure to cooperate with national NGOs, and lack of agreement on what work should be done.

Whatever the reasons for the failings of UNTAET’s Serious Crimes Unit, the basic problem was well beyond UNTAET’s power: all of the major culprits responsible for crimes against humanity were operating from or had fled to Indonesia and the Indonesian government has refused to transfer them to East Timor. The trials that were held in East Timor for crimes against humanity were for the “small fish,” for low-level militia members. The “big fish” in the Indonesian military are all safely in Indonesia. Even if the Serious Crimes Unit had been the best functioning department of UNTAET, it still could not have accomplished much because of this basic fact.

We at Yayasan HAK wished that UNTAET would have endorsed the demand for an international tribunal instead of pretending as if both the Indonesian ad hoc tribunals and the prosecutions by its own Serious Crimes Unit represented adequate methods for obtaining justice.

UNTAET’s failure with regard to justice is indicative of a broader failing. During the two and a half years of UNTAET, we East Timorese have had enormous difficulties just getting our voice heard in Dili itself, in the administration of our own country. UNTAET arrived with the idea of functioning as a neutral technocracy. It brought in thousands of foreigners who knew nothing of East Timor, paid them enormous salaries (even by Western standards), and gave them vast authority over us. We have expended great energies over the past two and a half years just trying to tell foreigners, many times without success, how to rule over us. Yayasan HAK hopes that the United Nations learns some lessons from its experience in East Timor concerning the unsuitability of its expensive, insensitive bureaucracy in a devastated land where self-empowerment was most needed for reconstruction.

The Necessity of an International Tribunal 

We East Timorese are often told to forget about the past, to put the past behind us and think about the future. How nice it would be if we could somehow magically forget! But we can not. We can not because the past is still with us. We still bear the injuries of torture and beatings. We are still living in utter poverty, in burned-out buildings, amid the graves of our relatives and friends. Are we supposed to forget about our dead ­ our mothers and fathers, our sisters and brothers? The past is all around us. We will be able to put this nightmarish past behind us precisely by understanding how and why it happened. And then once we understand that, we can determine who is responsible for it and what safeguards can be established to ensure that it does not happen again. This process of coming to terms with the past, this accountability for past crimes, is an absolutely necessary step if East Timor is going to move into the future.

Yayasan HAK believes national independence without justice for the heinous crimes committed upon our nation is a mutilated form of independence. That is why, on this day, we speak up once more to demand an international tribunal that would cover all crimes against humanity committed in East Timor, not just those in 1999. We shall list only several fundamental reasons here: (See Joaquim Fonseca, “Prosecution of Crimes under an International Justice Process,” paper presented at seminar: Justice And Accountability In East Timor: International Tribunals and Other Options, Dili, October 16, 2001). 

1. An international tribunal is needed to uphold international law and the United Nations. East Timor wishes to see both international law and the United Nations respected and honored. The 24-year occupation of East Timor was in violation of numerous UN resolutions. The crimes against humanity committed in 1999 represented a direct assault on a UN operation (UNAMET) and a UN treaty (the May 5, 1999 agreement). As the International Commission of Inquiry on East Timor (ICIET) wrote in January 2000, the “actions violating human rights and international humanitarian law in East Timor [in 1999] were directed against a decision of the United Nations Security Council ... and were contrary to agreements reached by Indonesia with the United Nations to carry out that Security Council decision.” The crimes committed in East Timor during the 24-year occupation were very serious and require a serious response. The crimes in 1999 were but the continuation of crimes that the Indonesian military had been committing since 1975; they were one small chapter in a long book. The entire occupation represented a violation of international law and an affront to the honor of the United Nations.

2. An international tribunal would help prevent the Indonesian military from committing the same kind of actions occurring in the future. It is East Timor’s geographical fate to be adjacent to Indonesia. While the Indonesian government has recognized East Timor’s independence, it appears that many of its civilian officials and military officers still believe that East Timor was somehow stolen from them by fraud. They still believe that the Indonesian military never committed any crimes against humanity here. Senior Indonesian military officers need to be subject to the force of international law so that the truth comes out inside Indonesia itself. The tribunal could assist the process of political reform in Indonesia (in particular, the ascendancy of civilian control over the military). While East Timor is not worried about a re-invasion by Indonesia today, it has reason to worry about the future because the Indonesian political system is so unstable. It is only with a reformed Indonesia, where there is rule of law and a proper accounting for past crimes, that East Timor will feel safe.

3. An international tribunal would promote reconciliation among East Timorese. At present, villagers in East Timor focus upon rank-and-file militia members as the perpetrators of past crimes. The public’s concentration and anger is thus focused on other East Timorese. In other words, conflicts inherited from Indonesia have been quarantined in East Timor where they are gnawing at the social fabric and sense of solidarity among East Timorese. An international tribunal that demands accountability of senior Indonesian officers would assist the public in appreciating the fact that it was the Indonesian military that had primary responsibility for the destruction wrought upon East Timor.

Concluding Reflections 

The resistance of the international community of nations and the United Nations to an international tribunal is symptomatic of the problems facing East Timor today. Some of our own leaders, in seeing this resistance, have dropped the demand for an international tribunal for fear of angering donor governments. Even our own leaders feed us nonsense about ‘forgetting the past and looking to the future.’ Do we East Timorese have the strength to be true to the principles of our own struggle for independence? How much are we supposed to sacrifice to be a friendly member of the community of nations? For 24 years we asserted our right to self-determination against the international consensus that we were a lost cause. Now that we have independence, are we to do nothing more that obediently follow the new consensus, even when it denies our ideals?

Since 1975, the East Timorese have been denied a voice. Our wishes have not been heard. We did not ask to be invaded by Indonesia and we did not choose to become a province of Indonesia. Yet powerful nation-states in the international community tacitly accepted the denial of our right to self-determination as right and proper. When a referendum was finally held in 1999, we did not approve of the conditions under which we were asked to participate in the referendum. We demanded better security arrangements before the vote and we told the United Nations that Indonesia would attack us after the vote. Again our voice was dismissed, as if the knowledge of the Indonesian military we had gained through 24 years of occupation was worthless. The United Nations preferred to accept assurances from Gen. Wiranto rather than our loud warnings. After the Indonesian military withdrew, our voice was again dismissed by UNTAET which so often made important decisions on its own.

Now that we have gained our independence we finally have the chance to design our own government and establish our own priorities. Yayasan HAK, along with many other East Timorese, believes that an independent East Timorese government should make the demand for an international tribunal to be one of its highest priorities. We see no other feasible method of obtaining justice.

Dili, 20 May 2001

Management Committee,

José Luís de Oliveira Secretary/Acting Executive Director

* Statement of Yayasan HAK for the Independence Day of the Democratic Republic of East Timor. For questions, please contact Joaquim Fonseca at +61 417 068 993, or e-mail: russo@minihub.org.

see also Human Rights and Justice page

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