The following article was published in Suara Timor Lorosa'e on its opinion page in Bahasa Indonesia on 11 October 2002. A slightly different version of it will also appear as an editorial in the October 2002 La'o Hamutuk Bulletin.

Independence and Impunity

By Charles Scheiner

The world’s most powerful nation could hardly wait to enforce its control over one of the tiniest, weakest, and least experienced. On 23 August, the Foreign Minister in East Timor’s three-month-old Government agreed for East Timor to be a safe haven for any United States officials who might commit crimes against humanity. East Timor bowed to U.S. demands never to turn over a current or former U.S. employee, official or soldier to the new International Criminal Court (ICC).

Fortunately, the Government in Dili has decided that this agreement must be ratified by Parliament and signed by the President before it becomes effective. Parliament should reject this surrender of East Timor’s hard-won independence to U.S. demands for impunity.

But even more importantly, many people from around the world, including many East Timorese citizens, are denouncing the campaign by the United States to subvert international justice. At this time, when President Bush has told the international community that the U.S. is prepared to invade Iraq without the support of the United Nations, it is particularly outrageous that Washington is demanding that East Timor grant pre-emptive impunity to the planners and executioners of its illegal and immoral war-making policies.

On 1 July 2002, the International Criminal Court came into being, following years of difficult negotiations and over the strong objection of the United States. East Timor was the third Asian nation to ratify the Rome Statute which establishes the court; 80 other nations have also ratified, and 50 more have signed. The Rome Statute was the very first treaty ratified by East Timor, a clear statement that this new country supports the fundamental principle of the ICC: that no one is above the law.

Given East Timor’s experience as a victim of crimes against humanity, and the frustration of people here at the failures of Indonesia and the international community to hold the perpetrators accountable, we would expect no less. Although the ICC cannot try crimes committed before July 2002, its creation and East Timor’s participation will help deter and punish such crimes in the future.

The United States has been trying to destroy the International Criminal Court for many years. Throughout the negotiations leading to the Rome Statute, delegates made numerous concessions to the U.S., weakening the court’s power and its ability to pursue perpetrators. Although President Clinton reluctantly signed the treaty in December 2000 (just before he left office), President Bush revoked the signature last May, and has promised that the U.S. will do everything it can to prevent Americans from facing the court.

The first U.S. tactic was to thwart UN peacekeeping missions which included American soldiers. Last June, the U.S. vetoed continuation of the UN Peacekeeping Mission in Bosnia and withdrew its military observers (UNMOs) from East Timor. In July, the United Nations Security Council caved in and adopted Resolution 1422. This resolution bars the ICC from investigating or prosecuting any cases “involving current or former officials or personnel” from the United States and other countries which refuse to sign the Rome Statute for crimes “relating to a UN established or authorized operation.” It has a one-year duration, but is expected to be renewed. In adopting Resolution 1422, the Security Council violated the UN’s own Charter it invoked Chapter VII powers designed to counter specific “threats to international peace and security” when the ICC poses no such threat.

Another U.S. tactic is to pressure each of the more than 100 countries where U.S. military personnel might be stationed to promise that they will never allow U.S. officials or employees in their country to be sent to the court without U.S. permission. Since the U.S. will not give permission, such agreements assure impunity. The agreement would also cover any East Timorese and other nationals who ever worked for the U.S. government or its contractors (such as Internews, the Asia Foundation or DynCorp).

Many countries have refused to sign such agreements, while others are procrastinating. Only Israel and Romania signed before East Timor. Israel illegally occupies another territory, and Romania executed its deposed dictator and his wife 13 years ago without a legal trial. In the month since East Timor signed, nine others (Tajikistan, Dominican Republic, Uzbekistan, Marshall Islands, Palau, Mauritania, Honduras, Micronesia and Afghanistan) have also signed, although many require ratification before the agreement takes effect. All these countries depend on U.S. military and economic support; most have little experience of genuine justice; most are small and weak nations.

In East Timor’s case, the U.S. action is particularly outrageous. This country has not even had time to develop its legal system, to write its criminal laws, to develop its diplomatic skills and relationships. Is providing impunity for U.S. soldiers a higher priority for East Timor than writing the laws that define how government functions?

If Parliament ratifies the impunity agreement with the United States, it will be violating East Timor’s laws. These agreements directly contradict the intent of the Rome Statute, a treaty which is now part of East Timor’s legal system. Under Article 9 of East Timor’s Constitution, “all rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.”

The wording of the impunity agreements says that the U.S. will prosecute its personnel “where appropriate,” with the decision up to the United States; furthermore, some acts which are crimes under the Rome Statute are not crimes under U.S. law. These loopholes violate the basic purpose of the Rome Statute: that the ICC will prosecute when governments are unwilling or unable to do so. The Rome Statute also gives the ICC, not national governments, the authority to decide whom to arrest or to request testimony from.

The U.S. claims these impunity agreements are covered by Article 98(2) of the Rome Statute, which was written to resolve conflicts between the new ICC and existing extradition treaties and Status of Forces Agreements. A Status of Forces Agreement (SOFA) is an agreement which defines how and where crimes committed in one country by soldiers from the other country will be prosecuted. The United States has signed SOFAs with more than 100 countries.

When the impunity agreement was signed in August, East Timor has not signed any SOFA or extradition agreements. Therefore Article 98 is irrelevant to us, and the impunity agreement is illegal. If East Timor ratifies the impunity agreement, the government will have more difficulty negotiating extradition and SOFA treaties, as it will have given up (to the United States) some of the authority which is usually apportioned by such treaties.

The ICC has jurisdiction only over the “most serious crimes of international concern” (genocide, crimes against humanity and war crimes), which are unlikely to be repeated in East Timor. But the pressure the U.S. has put on East Timor over this ideological issue is especially worrisome because the two countries were simultaneously negotiating a SOFA to specify how U.S. military personnel who commit non-systematic or individual crimes (such as rape, murder, assault, and robbery) in East Timor will be held accountable. U.S. soldiers who commit such crimes in Japan, Korea, the Philippines and other countries are usually removed to the U.S., where they often escape serious prosecution or penalties. East Timor and the U.S. signed the SOFA on 1 October, but the text has not yet been made public.

East Timor should make every effort to withstand U.S. pressure for impunity for these crimes, which are more likely than those covered by the Rome Statute. SOFAs are meant to allocate responsibility for prosecution rather than enable impunity, but I have learned that the SOFA between the U.S. and East Timor could allow U.S. criminals to escape responsibility. Any SOFA must be consistent with East Timorese law (including the Rome Statute) a requirement which is likely to be incompatible with U.S. demands. If the SOFA is presented for parliamentary ratification, as it should be, Parliament must consider these issues carefully.

The United States has threatened to cut off military aid and training for countries which ratify the Rome Statute and refuse to sign impunity agreements. But if the price of that aid is East Timor’s independence and this country’s ability to follow the principles of justice and rule of law that the UN, the U.S., and other countries have preached to us over the past three years, it is too high. Parliament should protect East Timor’s hard-won independence. No nation, especially not East Timor, should join the United States conspiracy to undermine international justice.

East Timor joined the United Nations on 27 September, and President Xanana Gusmão addressed the General Assembly in New York. He told the world’s delegates: “Timor-Leste shall never be a sanctuary for those who terrorize innocent civilians, be it on behalf of religion, ideology or any other disguise.” The President should keep his promise and refuse to sign the impunity agreement if Parliament sends it to his desk.

Charles Scheiner is Coordinator of the International Federation for East Timor (IFET), based in Dili. [STL omitted that he is also a staff member of La’o Hamutuk.]

Charles Scheiner La'o Hamutuk P.O. Box 340, Dili, East Timor (via Darwin, Australia) Telephone:+61-417-923273 or +670-390-325013 Personal: cscheiner@igc.org La'o Hamutuk: laohamutuk@easttimor.minihub.org http://www.etan.org/lh

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