Subject: FEER: Compromising Justice in East Timor [By Jill Jolliffe]

Far Eastern Economic Review

April 2006

Compromising Justice in East Timor

By Jill Jolliffe

In October 1999, Indonesian troops filed silently through the smoldering remains of East Timor's capital, Dili, and on to its port. Their sullen embarkation signified the end of a bloody imperial adventure which began in the former Portuguese colony 24 years before.

The Suharto dictatorship had fallen. United Nations officials in New York were busy drafting resolutions which would shape a new country about to rise from the ashes. Recently arrived U.N. peacekeepers observed the historic departure. They had been sent to restore order after violence accompanying an overwhelming pro-independence vote in August.

Around 1,400 people had died and countless others were injured or missing in the violence unleashed by the departing Indonesians and their Timorese militias. Another quarter million had been forcibly deported to Indonesian (West) Timor.

As the peacekeepers continued to arrive, U.N. Secretary-General Kofi Annan commissioned five international jurists, led by Costa Rican expert Sonia Picado, to visit Timor, assess breaches of international law and recommend U.N. action.

The team advised:

Victims ... must not be forgotten in the rush of events to redefine relations in the region, and their basic human rights to justice, compensation and the truth must be fully respected.

It stressed "the need to act against impunity in order to discourage future violations of human rights" and recommended that the U.N. establish an international tribunal to judge "those accused ... of serious violations of fundamental human rights and international humanitarian law...."

The secretary-general's response was to pass the Picado report to the Security Council without endorsing its recommendations. The Council voted instead to establish a two-pronged system of justice for East Timor. A special court in Jakarta would try Indonesian perpetrators, while a U.N.-funded Serious Crimes Unit (SCU) in Dili would prepare cases to be tried before international panels of judges.

It also approved a truth commission for Dili, the Commission for Reception, Truth and Reconciliation (known by its Portuguese acronym, CAVR), to collect testimony on human-rights violations committed between Portugal's botched April 1974 decolonization and Indonesia's 1999 withdrawal. Its brief was to reconcile perpetrators of minor crimes with their communities, while referring serious crimes to the SCU for prosecution.

Two important points to note are that, firstly, the resolution assumed that democracy was complete in Indonesia, that the reformasi process begun before Suharto's fall in May 1998 had succeeded. This is still not the case. Some enlightened reforms, including decentralization of power and direct election of all political representatives, have been instituted, but military figures still exercise inordinate influence. Secondly, the resolution concerned only war crimes committed in 1999, despite a clamor by the East Timorese public for redress in cases stretching back throughout the 24-year Indonesian occupation.

As a result, many Timorese distrusted the U.N.'s justice arrangements, not believing Jakarta capable of trying its own military officers who had ordered and directed the bloodshed. The SCU prosecutions in Dili were viewed more positively, even if their power was limited.

Seven years on and millions of dollars later, these various strands of the justice process have been tested and found wanting. There is discontent with the U.N.'s performance and a tendency by U.N., Timorese and Indonesian leaders to meet criticism by patching together inferior solutions without consulting victims, or civil society in general. By the time the U.N. was due to pull out of East Timor on May 20, 2005, the Jakarta court known as the Ad Hoc Tribunal had tried a mere 18 men accused of orchestrating the violence, mostly senior Indonesian officers. All were acquitted except Timorese militia leader Eurico Guterres, whose five-year sentence was increased to 10 years on appeal.

The SCU prosecutions in Dili had more to show, but also disappointed. International judges tried perpetrators by due legal process, but although 317 people had been indicted by May 2005, only 74 had been convicted. East Timorese militiamen were behind bars, but not their Indonesian commanders. The reason was that although the U.N. transitional administration in Dili had signed an April 2000 extradition agreement with Jakarta, President Megawati Sukarnoputri reneged on the deal. Most of those indicted still enjoy sanctuary in Indonesia.

In a bid to raise the psychological stakes, Timorese SCU chief Longuinhos Monteiro negotiated local police membership of Interpol. "Wanted" notices of indicted Indonesians now appear on the organization's Web sites, and when they travel abroad they risk arrest by Interpol agents and handover to Dili police.

In early 2005 the U.N. secretary-general ordered a new report to determine why the 1999 Security Council resolution had failed. But even before the three-person commission began work, a new scheme was being hatched by politicians to satisfy the clamor for justice without actually delivering it. The CAVR had not handed in the report of its investigation into the violations of 1974-99, yet a new truth and reconciliation commission was underway, undermining CAVR's credibility.

The idea of a bilateral Indonesian-East Timorese commission as an alternative to prosecuting war criminals had been raised earlier by Timorese Foreign Minister José Ramos Horta. By year's end a deal was in place between President Yudhoyono and East Timor's President Xanana Gusmão. This second Truth and Friendship Commission consisted of five Indonesian and five Timorese commissioners.

Presented as a project to facilitate truth-telling by Indonesian officials, it offered an amnesty to those who testified. Former Indonesian Defense Minister Gen. Wiranto, indicted for war crimes in Dili but untouchable in Indonesia, was a desired witness.

Its Timorese supporters argue that its truth-telling functions, facilitated by the amnesty, will assist President Yudhoyono to effect reforms within the military. They contend that by advancing Indonesian democracy it will serve Timorese interests (failing to consider that the commission could equally be a tool for Mr. Yudhoyono to vanquish political rivals).

The commissioners sought access to sensitive testimony in scu and cavr archives, triggering fears this material might end up in Jakarta's secret police files. The Timorese commissioners were mainly recruited from the cavr under pressure from President Gusmão's office. The Indonesian commisioners include West Timorese archbishop Petrus Turang and retired general Agus Widjojo, billed as a "respected reformist general." In 2001 Mr. Widjojo told a Jakarta conference that human-rights training was unsuitable for Indonesian soldiers because it interfered with their performance.

In Dili, critics underlined that the commission had not been debated publicly, and the influential Roman Catholic Church, which advocates war-crimes trials, expressed its dissent in a letter to Mr. Annan.

Meanwhile, the U.N. experts presented their findings on May 26, 2005, six days after the bulk of U.N. personnel had withdrawn from Dili. Their findings echoed those of the Picado report. They said the ad hoc trials in Jakarta showed "scant respect for relevant international standards" and recommended retrials, or, if Indonesia did not comply within six months, a war-crimes tribunal. The report called on the Security Council to extend the scu's work for two years.

On the bilateral Truth and Friendship Commission, U.N. experts urged the international community to withhold financial support "unless the two governments reconsider the terms of reference," saying the impunity offer violates international law. The experts also found "an absence of political will and government support in [East Timor] for the continuation of the serious crimes process, which impedes ... bringing to justice those responsible for crimes against humanity...."

José Andrade is an energetic parliamentarian for the governing Fretilin party. Officially he supports its impunity policy, but as a torture survivor his personal feelings tend to be at odds with the party line. He was arrested in 1999 in the border town of Maliana by Lieut.-Col. Siagian Burhanuddin, whose face now features on Interpol posters. Beaten insensible on Mr. Burhanuddin's orders during interrogation, Mr. Andrade was blinded in his right eye by blows from rifle butts. The SCU indictment brought him a sense of relief, but it could be dropped, leaving Mr. Andrade's torturer permanently at large.

There are an estimated 10,000 former political prisoners from the Indonesian period in East Timor. A sample of 45 recent in-depth interviews by the archival project Living Memory showed that more than 90% had also been tortured. Of these, a substantial proportion had suffered severe torture, defined by practices such as the application of electric shocks and the extraction of fingernails or toenails with pliers. The ex-prisoners are a forgotten group who struggle with personal demons, untreated injuries and anger over the injustice of impunity.

The capacity of the justice issue to generate tension was demonstrated when the 2,500-page CAVR report was finally tabled in late 2005. Based on 8,000 witness interviews, it was a damning litany of Indonesian abuses, blaming Jakarta for more than 100,000 deaths from killings, starvation and disease during the occupation.

President Gusmão delivered a copy to the U.N. secretary-general in January. The president told reporters that East Timor would not be seeking reparations from Jakarta. Nevertheless, Mr. Yudhoyono canceled a scheduled meeting with the Timorese president and relations chilled.

Mr. Annan has not responded to a September request from the Security Council for guidance on the latest experts' report. He is bound to speak before the U.N.'s current Timor mandate expires in May, but insiders predict he will once again ignore anti-impunity resolutions and the very advisors he commissioned, allowing the justice issue to fester. At the end of his term, it would not be costly for the secretary-general to take a principled, if unpopular, stand. Such a stand might even secure his reputation in history, but his legacy looks like being otherwise.

East Timor's vain quest for justice is a casualty of the new world order in which Indonesia's value as a moderate Muslim power supporting the war against terrorism outweighs its undemocratic shortcomings. It is, however, also a victim of international cynicism, which could see East Timor revert to its former status as a forgotten territory that lacks the international leverage necessary to redress decades of violence and abuse that still haunt those who live there.

Ms. Jolliffe is a free-lance journalist working on The Living Memory Project, a video archive of testimony by East Timor's former political prisoners. She recently shared the award of Journalist of the Year 2006 from Yale University's Globalist magazine.

------------------ Joyo Indonesia News Service

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