Subject: UN Calls on Indonesia to Review E. Timor Prosecutions [+ST/Khmer Rouge]

also: Annan issues delayed report on East Timor tribunal; and ST: Support Khmer Rouge Tribunal

UN News Center (New York) July 27, 2005

Timor-Leste: UN mandated Commission calls on Indonesia to review prosecutions

The Commission of Experts that reviewed the prosecution of serious crimes in Timor-Leste in 1999 has recommended that Indonesia strengthen its legal capacity, that its Attorney General's Office review its prosecutions and that some cases be reopened as may be appropriate.

In its report released today, the Commission recommended that Indonesia's judicial and prosecutorial capacity be strengthened by assembling a team of international judicial and legal experts to provide independent specialist legal advice to the Office of the Attorney General on international criminal law, international humanitarian law and international human rights standards.

It also suggested that prosecutions be "comprehensively reviewed" before the Ad Hoc Court set up to try individuals in connection with crimes against humanity committed in April and September 1999 and to reopen some, as deemed appropriate, on the basis of grounds available under Indonesian law.

If the recommendations are not implemented within six months from a date to be determined by the Secretary-General, the report adds, the Commission recommends that the Security Council adopt a resolution to create an ad hoc criminal tribunal for Timor-Leste located in a third State.

In its recommendations relevant to Timor-Leste, the Commission urged the Security Council to ensure that the Serious Crimes Unit (SCU), Special Panels and Defence Lawyers Unit (DLU) are provisionally retained until the Secretary General and Security Council have reviewed the recommendations made in the report.

It also urged the Security Council to ensure the continuity of the work of SCU, the Special Panels and DLU until the investigations, indictments and prosecutions of those alleged to have committed serious crimes are completed.

If these bodies are not retained, then it strongly recommends that the UN set up a mechanism under which investigations and prosecutions of human rights serious violations could be continued and completed.

The three-member independent Commission of experts ­ Justice Prafullachandra Bhagwati of India, Professor Yozo Yokota of Japan, and Ms. Shaista Shameem of Fiji ­ was appointed in January by the Secretary-General to review the prosecution of serious human rights violations committed in 1999 in Timor-Leste after the former Portuguese colony occupied by Indonesia in 1974 voted for independence.

The mandate called for the Commission to assess judicial progress made in both Timor-Leste, then known as East Timor, and in Indonesia, then recommend possible future action with regard to the anti-independence violence in which dozens of people were killed and hundreds of thousands fled.

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Annan issues delayed report on East Timor tribunal

UNITED NATIONS, July 27 (Reuters) - U.N. Secretary-General Kofi Annan went around the Security Council on Wednesday and formally issued a U.N. expert panel's report recommending an international tribunal to try Indonesian and local militia leaders blamed for a deadly 1999 rampage in East Timor.

The experts had submitted their findings on May 26 to Annan, who gave their report to the 15-nation council in June.

Normally such a document would be officially published at that time.

The council decided instead to delay its release indefinitely, and council diplomats gave murky explanations when pressed to say who had made the decision and whether the report would ever be published.

They said council members feared offending a new Indonesian government at a time its ties with East Timor were improving.

That prompted 12 human rights groups to write Annan asking him to ensure the report was published "as soon as possible" and its findings discussed by the council.

Although he said earlier it was not his decision to make, Annan within days informed the council he intended to issue the report "as a document of the Security Council," which happened on Wednesday.

About 1,500 civilians were killed, 250,000 left homeless and others raped and tortured when the Indonesian army and proxy gangs and militia razed much of East Timor in 1999.

The rampage occurred after mainly Roman Catholic East Timor voted in a referendum to break free from mostly Muslim Indonesia after 24 years of brutal military rule.

East Timor finally won independence in May 2002 after 2 1/2 years of U.N. administration, putting behind it centuries of Portuguese colonial rule and Indonesian occupation.

Under international pressure, Indonesia set up a special court to hear cases of crimes against humanity stemming from the 1999 rampage. But no high-level officials were indicted and only one of the 18 people brought to trial was convicted.

Annan in February named the panel of three outside experts to determine whether justice had been done, despite pleas from Indonesia and East Timor to leave the matter to them.

In their 149-page report, the experts faulted the earlier special court as deficient and said the Indonesian officials and gang leaders should be tried by an international tribunal if Jakarta did not agree to prosecute them within six months under international supervision.

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The Straits Times (Singapore) Thursday, July 28, 2005

Commentary

Support Khmer Rouge Tribunal

By Nathaniel Myers

ON MAY 12, the Special Panels in Timor Leste held the final hearing, convicting two former militiamen for their role in the violence that accompanied Indonesia's withdrawal from Timor in 1999. Following the verdict's reading, the presiding judge thanked the court's staff and declared the hearing closed. It was a quiet end to what had been a deeply troubled process.

Though long undermined by a dire lack of resources and skilled staff, the Special Panels' fate had ultimately been sealed by the international community's unwillingness to support it politically. In five years of operation, the court indicted 440 individuals, but only 87 were tried. The remaining 75 per cent, including the suspected leaders of the violence, lived openly and freely across the border in Indonesia, which rejected the court's repeated requests for extradition.

Foreign governments had decided that pressing Indonesia on the issue could mean jeopardising its internal stability as well as bilateral relations; this was a price they were unwilling to pay. Whatever credibility the Special Panels might have had among Timorese was irreparably undermined by this inability to reach those suspects. As a Timorese judge commented, 'Every individual must be responsible for his crimes. But speaking as a Timorese and not as a judge, I think this system is not fair. Is it fair to prosecute the small Timorese and not the big ones who gave them orders?'

The failure of the Special Panels should concern all those who believe in justice. But its experience is particularly relevant to those involved in the Cambodian Extraordinary Cham- bers, a special court set to open this year in Phnom Penh to try the surviving leaders of the Khmer Rouge. Like the East Timorese Special Panels, the Khmer Rouge Tribunal will be a 'hybrid' court, jointly operated by the United Nations and the national government. The Cambodian tribunal's obstacles will be different but its challenges will be equally great, and it will require international support to overcome them.

The potential benefits of the Khmer Rouge Tribunal are significant. For a people still reeling from the deaths of nearly a quarter of the population, a successful tribunal process would represent a significant step towards finding closure. After years of civil war and instability, it would mark a break with the past, and the beginning of a new Cambodia that respects law and order. It would, at last, provide official acknowledgement of the people's suffering. To the troubled judiciary, it might even act as a catalyst for genuine reform and strike a blow at the entrenched culture of impunity.

Unfortunately, international support for the Cambodian court is already wavering. Observers are understandably concerned about the leading role the troubled Cambodia judiciary will play. The United Nations' legal office agreed to the court only under pressure from several influential member states and has long been suspicious of the process; its representatives even included an article in the tribunal's charter that guarantees the UN's right to withdraw from the proceedings. The US Congress, which in 1994 passed a resolution calling for justice in Cambodia, so distrusts the Cambodian judiciary that it has voted to prohibit the US from contributing to the court.

Most Cambodian NGOs share these concerns, but recognise that the tribunal, however imperfect, represents the last real chance to hold accountable surviving Khmer Rouge leaders. In the light of this, they are crafting monitoring, outreach and support programmes in hopes of making it as effective as possible. The international community should follow their lead. The criticisms of foreign governments and donors are legitimate, but the appropriate response is not to threaten to abandon the tribunal.

Rather, they should resolve to make every effort possible to ensure its success. It is not enough for foreign governments to write cheques - they must be actively involved in the process, all the more so because of the validity of their concerns.

Beginning today, by pressing the government to make transparent the selection process for court staff and to make public the tribunal's budget, the international community must use its considerable influence with the government to ensure a successful court process.

There is no doubt the Khmer Rouge tribunal will not be perfect, but it is the last best chance to bring to justice the leaders of the worst genocide in the last 50 years - and it can succeed only with committed, active foreign support. The international community abandoned the court in Timor Leste - it must not do so again in Cambodia.

Nathaniel Myers is an adviser on tribunal issues based in Phnom Penh. He writes on hybrid courts and international justice issues. He can be reached at ndmyers@gmail.com


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