|Subject: A Pastoral Appeal: On Amnesty and
the Settlement of Crimes Against Humanity
ON AMNESTY AND THE SETTLEMENT OF CRIMES AGAINST HUMANITY A PASTORAL APPEAL
Today, in Timor Lorosae's society, there are different opinions taken regarding amnesty vis-a-vis the various forms of crimes and violations committed, particularly during the Indonesian occupation of our country. This problem is of utter importance because it is linked with high crimes against humanity done in the past, which, if left unsettled, will hinder the progress of our civil and public life. Thus, we deem it expedient and necessary to express and explain our stand regarding this matter.
The term amnesty derives from the Greek word "amnestia" which means: an act of forgetting. This term had evolved from judicial and political practices which gave power to the head of state to pardon criminal acts committed by a person or a group of persons. A person granted amnesty is released from litigation or from prosecution, for crimes covered by the amnesty statute. Offering amnesty is regarded as clearing the person from all the infamy of his crimes in the past and makes him, as it were, a man who had never committed such crimes and is released from any responsibility, whether criminal or civil.
In the past, amnesty was granted as a gesture of a king's magnanimity and measure of forgiveness towards his subjects. Today, however, human rights has become a significant concern of the international community. Amnesty constitutes one form of settlement of human rights violations committed by government personnel in the past. Amnesty serves as a reinforcing support in a newly established democracy, in a society undergoing a transition from an authoritarian regime to a democratic one. Decision makers adopt the amnesty statute as a form of compromise to guarantee national stability and unity.
Basis for Validating Amnesty:
It was said the prosecution of the members of the old regime, after its fall, may destabilize the new government, especially when it has to work together with elements of the old regime. Perpetrators of heinous crimes against humanity may move against any punishment meted out to offenders by a resurgence of violence or even by toppling the new legitimate government. Therefore, Amnesty may guarantee the continuity of the new democratic regime because members of the old regime are given space in the new. It can prevent officials of the old regime, particularly members of the military, from engaging in acts that may endanger the transition to democracy.
We are told that where there is reconciliation among the main groups in society and enmities in the past are put aside and forgotten, security, order, and stability among the people is guaranteed. Reconciliation is reached when perpetrators of violence in the past are given the assurance that they will not be prosecuted for their crimes.There is the question of cost. It was said that the process for bringing to justice the perpetrators of violations against humanity, whether individuals or groups, is a long and expensive one. There are many other pressing problems that need immediate action, such as: unemployment, lack of health services, educational facilities, and the like.
There is also, as a warning, of former perpetrators of crimes against humanity, who were also members of the old regime, who continue to wield power and can be a real threat to the process of transition to democracy, security, order, and national stability; and furthermore, because of other priority matters that need immediate action, the much needed human resources to run the courts of law and order are not available.
The historical reality in Timor Lorosa'e speaks for itself and makes the above-mentioned basis for an amnesty a very weak one. High crimes against humanity in Timor Lorosa'e happened as a direct result of Indonesian military invasion of the country. Indonesian authorities asserted its occupation of the country by initiating powerful and repressive institutions. In order to keep the reins of power, they employed East Timorese people as stooges. The political opposition and conflict between the pro-independence and pro-integration/autonomy East Timorese was, in fact, a conflict between the people of Timor Lorosa'e, who wanted independence, and the Indonesian authorities who used indigenous East Timorese as their front, in order to maintain its occupation of our country.
The departure of the Indonesians and the success of the pro-independence movement during the referendum of August 30, 1999, had weakened the power of the pro-integration/autonomy faction. They no longer have the support of the people and therefore, have less possibility of being a threat to Timor Lorosa'es independence. In the same way, the remaining Indonesian officials or military officers who are not willing to recognize an independent Timor Lorosa'e are no longer able to do acts that threaten Timor Lorosa'es independence. Furthermore, the international community's recognition of our independence makes our country, a country protected by international law, in the face of possible foreign invasion or aggression.
Of course, the dissension and conflict brought about by the Indonesian occupation may still be a threat to the security and order among our people. For this reason, we have to exert efforts at reconciliation among the different members of our society. Reconciliation sets as a condition, mutual acceptance between the conflicting parties. In this case, mutual acceptance between the victims of violence and the perpetrators of violence. This mutual acceptance presupposes admission of guilt and an expression of remorse and a promise to avoid committing the same violations on the part of the offender. It is only thus that the victim can grant forgiveness for all the sufferings he and/or his family has to endure. Forgiveness that does not come from the victim himself is not a strong basis for reconciliation. In fact, it may bring about more prejudice against suspected perpetrators of crimes and deeper dissension in the community.
It is true that there is a lack of skilled human resources in Timor Lorosa'e while there are many basic needs yet to be dealt with immediately. But, we must bear in mind that justice is one of these basic needs to be fulfilled; that justice was our main goal in our struggle for freedom. Furthermore, international law asserts that every independent state has the responsibility to investigate and to bring to justice perpetrators of high crimes against humanity. We are also aware that when CNRT was formed in 1998, in Peniche, Portugal, the leaders of our struggle for independence pledged that independent Timor Lorosa'e shall uphold human rights and international law.
Insufficient human and financial resources in our institutions of justice cannot be used as an excuse to forgo litigation of perpetrators of high crimes against humanity in our country. On the contrary, it is precisely for these reasons that we should strengthen our institutions of justice so that the rule of law may prevail in our land, rather than the rule of power of occupation times.
Litigation or prosecution of perpetrators of high crimes against humanity in the courts of justice will be for the government a severe warning to offenders, that violations against human rights will not be tolerated and whoever is guilty will be brought to justice. On the other hand, where impunity for offenders is allowed, so much more will the rule of law be weakened and human rights violated.
By international human rights standards, victims have a right to the truth and to indemnity, restitution, and reparation. The offer of amnesty without an initial admission of guilt from perpetrators of high crimes against humanity does not provide the victims the right to know what truly happened. Besides, the offer of amnesty by a head of state means that the state takes over the responsibility of the offender to pay indemnity, restitution and reparation to the victim. Without uncovering the truth, it is possible that the victim may not obtain any indemnity, restitution, or reparation because there is no certainty as to who the victim of is, since the crime itself has never been exposed.
In the interest of the state, cover-up of the truth may bring about unfavorable consequences. Thus, we lose the opportunity of compiling a true history of our past, risk committing the same mistake in the future and an unfavorable appraisal of our country's history. We know that that a nation that does not study its history will surely repeat its mistakes. It is, precisely, when we cover-up the truth of our past that we give the government, or any power group for that matter, the opportunity to deny and distort the truth. Exposing the pattern of systematic and institutional violence that took place in our country, will help to facilitate the elimination of any institutional base that supports perpetrators of crimes; it will help to create a foundation of accountability for the new government and; it will help in the process of reparation and healing for the victims.
After 24 years of political conflict, the Democratic Republic of East Timor is now "a democratic, sovereign, independent and unitary State based on the rule of law, the will of the people and the respect for the dignity of the human person." (Constitution, s.1) During the conflict many wrongs were committed. Most of those wrongs cannot be put right. There are still thousands of East Timorese waiting to return home. We now have a National Parliament, a Government and a President who together are able to lead us to a reconciled future together in this land.
Timor Lorosa'e must look to the future -- towards a life of security, peace, prosperity, and justice. Therefore, Timor Lorosa'e must be able to confront and settle her past, so that, the evils of the past will not be repeated in the future. Timor Lorosa'e society, fragmented by violence, can rebuild relationships only through peace and civility. We can rebuild relationships when we are able to accept the dark events of our past. We need to admit the truth of what happened and then we can agree together on how to build good relations. If the truth is not accepted, then the inter-relationships among our citizens will always be colored with the dark events of the past. Memories will be difficult to erase because they are involve what is held as valuable to life: children, wife, husband, relatives who had been victims of disappearances, rape, torture, detention, murder, and other crimes.
The life of Jesus Christ teaches us that victims of suffering must be our prime concern. Victims of violence suffer more than physical pain. Their mental and psychological suffering leaves its mark throughout their lives. Jesus also teaches that the victim should initiate reconciliation. However, our religion and faith demands that he who does evil must admit his sinful action and express remorse and repentance and firm resolve not to offend or do what is evil again. It is only by doing that he/she forgiveness.
Pope John II captured the relationship of truth and justice, especially as it relates to forgiveness, in his message for the 1997 Day of the World Peace. He says that there are two things required to bring about forgiveness and reconciliation, respect for the truth and justice that is not limited to that which is right among the parties to the conflict, but looks about all to re-establish the authentic relations with God, with the self, with others. Truth prepares the ground for justice.
In light of the consideration above our stand toward the question of amnesty is as follows: 1. Amnesty may be granted to perpetrator of crimes but crimes not classed as heinous crimes. As a new nation, East Timor has limited resources for the investigation, prosecution and defence of those charged with past criminal behaviour. We must be fair in deciding who to prosecute and for what. Now is the appropriate time for our President, our Government and our National Parliament to close the chapter of past criminal behaviour which plagued both sides of the political conflict between 1975 and 1999. There is no need to use up precious resources prosecuting people for less serious offences which they committed in the past. However, persons who committed the most serious crimes such as mass murder, even for political reasons, should not be eligible for an automatic amnesty. They should be prosecuted unless the victims' families and the local community request the grant of a special amnesty to the accused person. The Church encourages such acts of forgiveness and reconciliation, while understanding that some victims' families may justifiably want an accused to face trial and conviction according to law.
2. Amnesty may be granted to perpetrator of crime beforehand, have expressed the truth; have admitted their guilt; have expressed repentance and remorse and have promised not to do the same offence again If these offences related to the political conflict and if the offenders are still causing problems in local communities, people should approach the Commission for Reception, Truth and Reconciliation for assistance. It is time for the National Parliament to commence a proper national inquiry into the terms and conditions for the grant of a general amnesty to persons who committed serious crimes (not the most serious crimes) during the course of the political conflict.
After appropriate consultation with the public, with civil society and with the Commission for Reception, Truth and Reconciliation, the National Parliament should present the President with an amnesty law for his approval. An automatic amnesty for all past offenders would be unjust on those victims and their families who have suffered most. It would also risk our new nation falling into denial and forgetting our past. On the other hand, a ruthless prosecution of all past offenders with no amnesty would condemn our poor country with limited resources to an endless and wasteful search for justice and reconciliation in the courts which would be a frustrating failure. We now have the appropriate State bodies with the constitutional authority to act on behalf of all the citizens. Now is the right time for our elected national representatives to strike the right balance between the past and the future, between victims and offenders, between justice and mercy according to law, and between remembrance and new life.
As the Church we commit ourselves in prayer and action to the development of an amnesty law which realises our hopes of justice, forgiveness and reconciliation for all who have emerged from bloody and criminal conflict "with a view to building a just and prosperous nation and developing a society of solidarity and fraternity". (Constitution, Preamble).
3. The state, in this case the government has the obligation to determine and to implement rehabilitation and recovery program for victims (including a process of mental and physical healing). It should also establish mechanism for determining who are entitled to these programs, based on a just, democratic and transparent process.
4. Amnesty does not include accountability for civil cases. Offenders must pay financial indemnity.
5. Forgiveness on the part of the victim must be a pre-requisite in granting amnesty.
In any discussion about amnesty, there is a need to distinguish: a) Less serious crimes: crimes which will not be prosecuted now even if there be no amnesty. These crimes cannot be practically prosecuted because there are not the resources to prosecute them fairly. Given the other social needs, there is no point in taking resources from elsewhere to make these prosecutions. People want to get on with the business of building the new nation and delivering services such as health and education.
b) Serious Crimes committed for political reasons: crimes which could be subject to a fairly administered amnesty policy
c) Serious Crimes which were not committed for political reasons: crimes which could be prosecuted when resources are available and crimes which will be prosecuted if someone continues to be a troublemaker once they have returned to their local community
d) Most serious crimes: Crimes which will be prosecuted and which will not be subject to a general amnesty but which could be the subject of a special amnesty if the victims, their families and the local community are agreeable to an amnesty after the fulfilment of conditions they decide.
Any law about amnesty must take into account the following matters: 1. The judicial system in East Timor is already overtaxed and under-resourced. Even without amnesty, the prosecutors must be very selective in choosing who to prosecute. Their highest priority should be the prosecution of those who have committed the most serious crimes. For example, there should be no general amnesty for mass murderers or those who committed serious crimes against humanity.
2. The majority of the most serious offenders from 1999 are still in Indonesia beyond the reach of the East Timor justice system. There are still thousands of refugees in West Timor waiting to return home. They should be told that hose suspected of serious crimes will not be prosecuted at this time unless they are apprehended for continuing breaches of the peace on their return to East Timor, in which case prosecutors will proceed against them for offences committed in 1999 as well as offences committed on their return. However, if any person suspected of most serious crimes is apprehended for continuing breaches of the peace on return to East Timor, the process for prosecution of their most serious crime will be instituted forthwith.
3. Most persons who have committed criminal offences in East Timor between 1975 and 1999 may never be prosecuted because there are not the resources and now there is not the evidence to produce a credible conviction. Prosecutors need to have an impartial policy for selective law enforcement and selective prosecution.
4. There are persons who committed serious crimes for political reasons during the 1975-1999 conflict. They are living in East Timor. The political conflict is now over. It is time to draw the line and move forward together. There is a good case for granting an amnesty to these "political offenders" provided they are committed to no further criminal activity in working against the independence and sovereignty of East Timor. Any amnesty should be equally available to those from both sides of the political conflict.
5. It is the National Parliament's obligation to draft an amnesty law after appropriate consultation with affected groups, especially victims. The Parliament should consult especially about the different categorisation of serious crimes: a) Less serious crimes which usually are not prosecuted, in accordance with a fairly administered selective prosecution policy
b) Serious crimes committed for political reasons which may be subject to an automatic amnesty on fulfilment of conditions set down in amnesty legislation
c) Serious crimes not committed for political reasons which may be prosecuted in accordance with a fairly administered prosecution policy
d) Most serious crimes which are prosecuted unless the victims, their families and the local community request the grant of a special amnesty on fulfilment of conditions which they have specified to the accused.
May God show us the way towards the settlement of the problems that beset this country that we love.
Dili, June 29, 2002
BISHOP CARLOS FILIPE XIMENES BELO, SDB
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