|Subject: Justice in Limbo: The Case of East
Justice in Limbo: The Case of East Timor 
Adérito de Jesus Soares 
“They say they are not satisfied…they come to me constantly saying they want justice”.
Bishop of Dili, Dom Alberto Ricardo da Silva. 
“Not the murderer but the victim is considered guilty”
It has been five years since the 1999 referendum supervised by the United Nations, where the Timorese people voted overwhelmingly for independence. Unfortunately, the 1999 referendum also resulted in heinous atrocities such as killings of civilian, widespread rape, shootings, stabbings, destruction and looting of property and infrastructure, mass displacement of the population, and other gross human rights violations orchestrated by the Indonesian army and security forces with their militias. Since then, various international organizations and individuals have conducted research on what happened in East Timor in 1999, especially in relation to the grave human rights violation that took place before and after the referendum. Many recommendations from these reports have been put on table. The question now is how to implement such proposals and recommendations.
While we are watching this uncertainty both on a national and international level, there is no doubt that those who suffered the victims are still crying for their lost sons, daughters, fathers, mothers and other relatives. They are waiting for justice and wondering how and when it’s going to be delivered to them. Meanwhile, the world watches as the perpetrators walk free or worse still are conducting atrocities in other places. In the case of East Timor, those Indonesian generals responsible for crimes in 1999 are still actively involved in various military operations in Aceh, West Papua and other parts of the Indonesian archipelago.
Findings yet to be implemented
Following the devastation in East Timor after the referendum, the UN established the International Commission of Inquiry in order to carry out a comprehensive investigation on the atrocities that occurred in 1999. The Commission’s findings were unequivocal the Commission stated clearly that what had happened in East Timor was a breach of international human rights law. So, the UN has a paramount responsibility in bringing those who committed crimes to trial. The report stated clearly the mandate of UN as follows:
“The UN, as an organization, has a vested interest in participating in the entire process of investigation, establishing responsibility and punishing those responsible and in promoting reconciliation. Effectively dealing with these issues will be important for ensuring that the future Security Council decisions are respected.” 
Furthermore, the report documented the systematic and widespread violence in East Timor which constituted crimes against humanity. It further stated that an international tribunal should be established under the auspices of the UN to bring those responsible to justice.
Following the UN report, the Indonesian Human Rights Commission (KPP HAM) also conducted its own investigation into what happened in East Timor during the 1999 referendum. The results of KPP-HAM’s investigation were also extremely strong, stating that the Indonesian military and its proxy militias had committed gross violations of human rights in East Timor during the referendum in 1999. The recommendations of both the International Commission of Inquiry and KOMNAS HAM suggested that an international tribunal had to be established in order to try those who committed crimes.
Shortcomings of the Various Mechanisms and the Demands of Victims
What is missing from all these efforts to end impunity for the perpetrators? Today, we are watching while those recommendations sit, gathering dust, on desks at the UN. The recommendation to establish an international tribunal was deferred as the Indonesian government moved to carry out their own investigation and to try those perpetrators through their own system. In responding to Indonesia’s prompt reaction, the Secretary General Kofi Annan said that the international community must offer the Indonesian government the chance to prosecute the perpetrators via their own justice system. As a result, in March 2002 the Indonesian Government established the Ad-Hoc Human Rights Court in Jakarta. Sadly, these trials have been a real whitewash, with 17 of the 18 indicted being acquitted by the Ad-hoc Court. On the other hand, the Special Panel for Serious Crimes (SPSC)  the tribunal responsible for trying those accused of serious crimes established by the United Nations Transitional Authority in East Timor (UNTAET) has no power to bring a single perpetrator from Indonesia to the court in Dili. Prior to the establishment of SPSC, UNTAET established the SCU in order to carry out investigations and prosecute cases in the SPSC. The SPCS has universal jurisdiction over the following crimes murder; sexual offences if they occurred between 1 January 1999 and 25 October 1999; and while there is no temporal limit applicable for crimes against humanity, genocide, and war crimes as regulated in article 2.3 UNTAET Regulation 2000/15. Although the SPSC was granted a strong mandate, it is really powerless to subpoena perpetrators who mostly still reside in Indonesia  it has been unable, for example, to extradite more than 300 indictees who are still residing in Indonesia. Only 74 Timorese perpetrators have been convicted and they are all low-ranking militias involved in 1999 atrocities. Although the head of UNTAET, the late Sergio de Mello and the former Attorney General of Indonesia Marzuki Darusman signed an MOU  to facilitate the work of the SPSC and SCU, the MOU was later rejected by the Indonesian government who refused to implement its terms.
One other effort that has been taken by UNTAET with the support of East Timor leadership was the establishment of the Commission for Reception, Truth and Reconciliation (CAVR) in East Timor.  CAVR is currently preparing its final report which may be launched in the coming months. Despite CAVR’s achievements, particularly in community reconciliation, it has not managed to interview or seek information from a single perpetrator mentioned by Timorese giving testimony before CAVR’s public hearing. Again, most of these perpetrators are still residing in Indonesia.
So, after seeing all the efforts that have been taken by both the Indonesian government and East Timor, the UN Secretary General recently established the Commission of Experts (CoE) in order to conduct an evaluation regarding the Ad-hoc human rights court in Jakarta and the Special Panel for Serious Crimes in East Timor. While such a step is significant, it has been too long coming. The establishment of CoE has been controversial since the Indonesian government, on various occasions stated that they will not cooperate with the Commission. Curiously, at almost the same time, on 9 March 2005 the East Timor Government and the Indonesian Government established the Commission on Truth and Friendship (CTF). This has created a lot of tension between civil society in East Timor and Indonesia and their respective governments. 
In East Timor, the leadership has really pushed for this Commission. It is both sad and odd that the Timorese leadership on various occasions has stated that the East Timorese government will not push for an international tribunal. This pragmatic gesture taken by the leadership is understandable, since they have decided that a good bilateral relationship with Indonesia is the paramount goal of the East Timor government. I do share the concerns of the leadership; however, I disagree with the logic of this approach. It is true that East Timor as poor, tiny country does need to establish a good relationship with Indonesia, its giant neighbor. However, the price of this bilateral relationship should not be justice for victims. Furthermore, a more stable relationship can only be achieved if Indonesia becomes more democratic in the future. In achieving a more democratic country in Indonesia, one of the key factors is upholding the rule of law, where those who committed crimes (including in East Timor) need to be brought to justice. Here the difference arises between the East Timorese leadership and civil society both in Indonesia or East Timor.
Various civil society groups have voiced their difference with establishment of the CTF from the outset of the initiative to establish the CTF, civil society groups (including victims’ group) in Indonesia and East Timor have voiced their opposition to it. The Timor Leste National Alliance for an International Tribunal an umbrella organization comprised of NGO’s, students organization, women groups and 1999 victims’ group in its statement regarding the establishment of the CTF stated:
“It obviously shows to the international community, and particularly the people of East Timor and Indonesia that both governments are maintaining impunity and protecting the perpetrators. By doing that, both governments also demonstrate their ignorance of the judicial process of the Serious Crimes Unit and the Commission for Reception, Truth and Reconciliation in East Timor.” 
Recently, after the two governments signed the CTF’s terms of reference, a joint statement opposing the CTF was endorsed by both Indonesia and East Timor NGOs. It read:
“…NGOs therefore deeply regret the establishment of the CTF which they consider to be disregarding justice for the victims of serious human rights violations in East Timor.” 
Despite the serious efforts of the Timorese leadership to garner support for the CTF, many people, especially victims are disappointed. In terms of achieving justice, it seems that there is no light at the end of the tunnel for them. Some argued that the creation of the CTF is unconstitutional, since East Timor’s constitution prohibits the state from dealing with heinous crimes such as crimes against humanity, genocide and war crimes, through any mechanism other than a judiciary. 
It is unlikely that the CTF will bring justice for victims. Rather, a big concern is that it will potentially preserve the situation of impunity for perpetrators.
In spite of the non-judicial mechanism such as the CAVR and the upcoming CTF, many Timorese victims are still demanding formal justice through a court.  It has been five years from the dark days of 1999 yet victims are still unsatisfied with the formal justice mechanisms such as the SPSC in Dili, which is powerless to bring perpetrators before the court, or the Ad-Hoc Human Rights Court in Jakarta which has been a complete whitewash. Today, the world watches again, as it is not victims who choose the road to justice. Rather their rights are ignored in favour of the political interests of their leaders and the realpolitik of the world powers. As a 1999 victim, whose beloved husband was killed by militias, said to me recently: “I only want to know who forced the Timorese militia to kill my husband. I want to see justice for those who destroyed my life…I want to see justice for my kids, who survive with me… but every time I see our leaders cheer the murderers, it hurts.” 
 Presented at international symposium on “the International Criminal Court (ICC) and Victim of Serious Crimes”, organized by Faculty of Law, University of Tokyo, March 29, 2005.
 Lawyer and Human Rights Advocate and lecturer at university in East Timor. Former member of East Timor Constituent Assembly who used to work for various human rights NGOs both in Indonesia and East Timor.
 Comment made by Bishop of Dili regarding the demand of Timorese people for justice, see Jill Jollife, Justice at the Crossroads in East Timor, Asia Times, February 24, 2005
 Report of the International Commission of Inquiry on East Timor to the Secretary-General, January 2000. UN Doc A/54/726 and S/2/2000/59, 31 January 2000.
 SPCS was established under the UNTAET Regulation 2000/11. Following the establishment of SPSC, UNTAET established the Serious Crimes Unit (SCU) based on UNTAET Regulation 2000/16 which has the mandate to carry out investigations.
 See Adérito de Jesus Soares, Justice for East Timor, South China Morning Post, August, 2003
 See Memorandum of Understanding between the Republic of Indonesia and UNTAET regarding cooperation in Legal, Judicial and Human Rights related matters, April 6, 2000.
 Commissao de Acolhimento, Verdade e Reconciliacao (CAVR) de Timor-Leste. It was established with the UNTAET Regulation 2000/10.
 Recently the Indonesia NGOs and East Timorese NGOs signed a joint petition opposing their respective governments on the establishment of the Commission for Friendship and Truth.
 See, the Timor-Leste National Alliance for an International Tribunal, National Response to the Indonesian and East Timor governments to establish a Truth and Friendship Commission, December 21, 2004. The same position was taken by Indonesian NGOs regarding the CTF, see, Indonesian NGOs on joint Timor-Indonesia Truth Commission, December 27, 2004. See also, Adérito de Jesus Soares, East Timor: Justice for Whom? The Jakarta Post, February 2, 2005.
 See, Indonesian and Timorese NGOs reject Truth and Friendship Commission, Kompas, March 19, 2005.
 Section 160 of East Timor Constitution states that, “acts committed between the 25th of April 1974 and 31st of December 1999 that can be considered crimes against humanity of genocide or of war crimes shall be liable to criminal proceedings with the national or international court”.
 See Piers Piguo, Crying Without Tears: In Pursuits of Justice and Reconciliation in Timor-Leste: Community Perspectives and Expectations, in www.ictj.org/downloads/crying_without_tears_designed.pdf
 Conversation with a Timorese widow whose husband was killed by militia during the 1999 referendum.
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