The 10th anniversary of a United Nations-sponsored referendum which effectively ended Indonesia’s 25-year military occupation of East Timor has rekindled the debate on the merits of establishing an international criminal tribunal for crimes against humanity and other atrocities that were committed in the former Portuguese colony during the occupation, which culminated in a post-referendum campaign of violence in 1999 that claimed 1,400 lives.
In response to what it perceives as inadequate measures to dispense justice for atrocities in East Timor, Amnesty International on August 27 called upon the UN Security Council to immediately set up an international criminal tribunal with jurisdiction over all crimes committed in East Timor between 1975 and 1999.
But East Timorese President José Ramos-Horta, the founder of the Revolutionary Front for an Independent East Timor (Fretilin), which led the independence movement, disagrees. He stated on August 31 that his preference, “both as a human being, victim and head of state, is that we, once and for all, close the 1975-1999 chapters of our tragic experience and forgive those who did harm to us.” He went on to accuse “those in the US and UK” of simplistically asserting that “the absence of prosecutorial justice fosters impunity and violence.” He categorically asserted that there will be no tribunal.
But speaking at the World Economic Forum in January 2002, when he was interim Foreign Minister, Ramos-Horta had called upon the United Nations Security Council to establish a criminal tribunal to deal with the atrocities, in the spirit of the tribunals for the Balkans and Rwanda, though he was sceptical that this would be done: “The Security Council does not seem to have the courage to do what is logical, to set up a war crimes tribunal.”
It is not immediately clear what has sparked Ramos-Horta’s dramatic change in attitude since then. Perhaps it is the importance of forging better relations with Indonesia, or the importance of eliminating widespread poverty in the tiny nation, which he says is the real failure of the past 10 years. But considering his remarks together with the fact that the World Bank has advised East Timor that it needs to engage in trade with Indonesia to revive its economy, it becomes more obvious why Ramos-Horta thinks that “the greatest act of justice is that we are free today.”
The anniversary - and the responses it has provoked - has drawn attention to two competing theories of justice: the retributive model and the restorative model.
The Failure of Retributive Justice: Crime without Punishment
The prevailing justice paradigm for genocide, crimes against humanity and war crimes is that of prosecution and punishment, through the allocation of individual criminal responsibility. For evidence of this, one need only look at the overwhelming international support for the only permanent international criminal tribunal, the International Criminal Court, as well as the ad hoc tribunals for the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the Cambodia Tribunal.
In 1999, at the height of the violence in East Timor, the Security Council in Resolution 1264 recognised the situation as constituting a threat to international peace and security and demanded that those persons responsible for systematic, widespread and flagrant violations of international humanitarian and human rights law be brought to justice. It stopped short however, of calling for an international criminal tribunal.
Then, a UN report of December 10, 1999 entitled Situation of Human Rights in East Timor – compiled by three UN thematic Special Rapporteurs - recommended the establishment of an international criminal tribunal by the Security Council, preferably with the consent of the Indonesian government, but it stated that “such consent should not be a prerequisite.” It called for prosecutions of those responsible “both directly and by virtue of command responsibility, however high the level of responsibility.” Such a tribunal, they recommended, should have jurisdiction over all crimes under international law committed by any party in the Territory since the departure of the Portuguese in 1975. No such Tribunal was ever established.
At a more local level, more progress was made. The UN Special Panel for Serious Crimes in East Timor was established by the UN Transitional Administration in East Timor (UNTAET) to try serious criminal offences that occurred during 1999. This hybrid East-Timorese-international tribunal convicted 84 individuals, but most of them were low-level defendants - not high-ranking commanders - who had participated in local-level pro-Indonesia militias. Only a few were low-ranking members of the Indonesian Armed Forces. Over 75 per cent of the people indicted remain at large and only one person is in prison in East Timor for crimes committed in 1999.
A total of 303 arrest warrants were issued, including one which remains outstanding for the former General Wiranto, the commander of Indonesian troops in East Timor in 1999, who was indicted for crimes against humanity. In his 2006 report, ‘Justice on the Cheap’ Revisited: The Failure of the Serious Crimes Trials in East Timor, David Cohen writes that the issuance of the arrest warrant against Wiranto led to a total breakdown in co-operation between the investigative Serious Crimes Unit and the Prosecutor-General of East Timor. Further, the Government of East Timor refused to authorise Interpol to issue an international arrest warrant. According to Cohen, East Timorese governmental elites never supported the trials, their main priority being friendly relations with their powerful neighbour. The major stumbling block for the tribunal was that the accused were Indonesian nationals and the government of Indonesia refused to turn them over to East Timor or to the United Nations forces, but Cohen also writes that the tribunal was plagued by funding and staffing issues.
The antagonism of the Indonesian Government towards extradition requests continues today. As recently as September 10, in relation to the recently-opened Australian war crimes investigation into the deaths of five journalists by Indonesian government forces at Balibo in 1975, Government spokesman Theo Sambua categorically denied that Indonesia would co-operate: “If they want us to hand over our people, to agree to any extraditions, certainly not”.
Such opposition would be warranted if Indonesia had conducted legitimate and fair prosecutions on its own watch. Instead, its efforts in this respect ended up being farcical, and failed to provide accountability. Indonesia set up an Ad Hoc Human Rights Court with the stated intention of bringing to justice those responsible for the 1999 killings. But it acquitted all eighteen of the Indonesian Armed Forces officers suspected of orchestrating the violence, including General Wiranto. The only person jailed was Eurico Guterres, the leader of an anti-independence militia, who was later acquitted after the Supreme Court - which had in 2006 upheld his ten-year sentence - decided he was not responsible for the killings carried out by his subordinates.
Not a Matter for the UN Security Council
Whilst the initiatives taken so far to prosecute perpetrators of serious crimes in East Timor have not borne fruit, and although the idea of prosecuting Indonesian military commanders for war crimes is relatively uncontroversial outside Indonesia and East Timor, the emphasis on a tribunal established by a Resolution of the Security Council a decade later may be misguided. The Tribunals that it created, the ad hoc Tribunals for the Former Yugoslavia and Rwanda, were established contemporaneously, and pursuant to Chapter VII of the UN Charter, to restore international peace and security. Similarly, in the case of Sierra Leone, the Security Council in Resolution 1315 considered that the security situation continued to “constitute a threat to international peace and security in the region” and therefore requested the Secretary-General to begin negotiations with the Sierra Leonean government to create the Special Court for Sierra Leone.
It may be difficult to for the Security Council to make the case that the establishment of a tribunal for East Timor now, 10 years after the end of the violence, is necessary in order to maintain international peace and security.
On the other hand, the Cambodia Tribunal was established in 2006, long after the murderous Khmer Rouge had been toppled from power in 1979. The key aspect of that hybrid tribunal however, is that is a joint court established by agreement between the United Nations General Assembly and the Government of Cambodia, which transmitted the request for such a court.
It is difficult to see how a similar hybrid tribunal for East Timor would be established without a similar request, or at the very least, by consent of the Government of East Timor.
Restorative Justice: Remembering in Order to Forget
In any case, retributive justice is arguably not the only form of ‘justice’, and East Timor’s leaders have in more recent times advocated for restorative justice in the interests of leading both nations ‘forward’. South Africa’s Truth and Reconciliation Commission, one of the most widely discussed examples of restorative justice, was established in the interests of national reconciliation, but its success is open to debate. Many victims of Apartheid-era abuse felt that the TRC had failed to achieve reconciliation between the black and white communities and were angered at amnesties being granted to perpetrators of serious violence.
A series of similar inquiries were conducted by Indonesia and East Timor after the violence in East Timor ended in 1999, all with questionable success.
In January 2000, the UN International Commission of Inquiry on East Timor submitted its report to the UN Secretary-General. The commission concluded that Indonesian armed forces were responsible for “patterns of gross violations of human rights which… took the form of systematic and widespread intimidation, killings and massacre, humiliation and terror, destruction of property, violence against women and displacement of people.” The Commission recommended that the UN establish an international human rights tribunal.
The Indonesian government passed a law in 2004 creating a national Truth and Reconciliation Commission (TRC) to begin to confront past abuses, but the law was severely flawed. Following a constitutional challenge, it was revised in 2007, but retained its original shortcomings including mechanisms to recommend amnesty for perpetrators of serious crimes.
In January 2006, former East Timorese President Xanana Gusmao handed a report of the East Timorese Commission for Reception, Truth and Reconciliation to UN Secretary General Kofi Annan. The Commission had been established in 2001 under UNTAET. The report, entitled Chega! - meaning “stop” or “enough” in Portuguese - catalogued human rights abuses perpetrated by Indonesian forces during the occupation, including deliberate starvation and rape, and it suggested that the military used napalm bombs and other chemicals to poison food and water during the initial invasion in 1975. The report estimates that between 84,000 and 183,000 people were killed between 1975 and 1999, and that 90 per cent died from hunger and diseases as a result of Indonesian repression.
Gusmao said that the Chega! report’s main purpose was to establish the truth as to what happened so that it may not happen again. “It is not so important to look at the figures. It is more important to look at the lessons,” he explained. “We don’t advocate punitive justice but restorative justice.”
The Politics of Truth: Amnesty and Apology
Speaking on ABC Radio Australia on July 27, Ramos-Horta drew attention to the 2005 Joint East Timorese-Indonesian Commission on Truth and Friendship (CTF) that he and former President Xanana Gusmao established together with the Government of Indonesia to record human rights abuses committed in 1999, which Cohen argues was the manifestation of the mutual policy of strong diplomatic ties rather than prosecuting individuals. “Indonesia showed courage and maturity in accepting this joint commission,” Ramos-Horta pointed out, “and then [they] accepted the findings.”
However, what Ramos-Horta didn’t say was that the United Nations boycotted the CTF proceedings, whose mandate included provisions allowing for the recommendation of amnesties, but preventing the Commission from recommending prosecution. “The UN cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them,” stated UN Secretary-General Ban Ki-Moon. “Unless the terms of reference are revised to comply with international standards, officials of the United Nations will, therefore, not testify at its proceedings or take any other steps that would support the work of the CTF and thereby further the possible grant of amnesties in respect of such acts.”
The international criticism received by the Commission, as well as the Commission’s finding that Indonesian military witnesses were evasive and untruthful, led to its decision not to grant any amnesties. The CTF report published in July 2008 found that the Indonesian military, the Indonesian civilian government and anti-independence militias were institutionally responsible for thousands of “gross human rights violations in the form of crimes against humanity” including “murder, rape, and other forms of sexual violence, torture, illegal detention and forcible transfer and deportation” against East Timorese civilians. Its findings are consistent with reports by United Nations and Indonesian human rights investigators. While the report is generally perceived to be credible and comprehensive, it still left a significant gap to be filled in terms of holding individuals to account.
One of the recommendations of the CTF was for both countries to issue an apology - although it is unclear exactly to whom East Timor should apologise - yet Ramos- Horta admitted on radio that no apology has yet been received from Indonesia. “I am ready when Indonesia decides it is ready to issue an apology,” he said.
The absence of an apology calls into question Ramos-Horta’s implicit claim that the two countries are ready to move on. Several scholars have recognised the central importance of apologies to the process of post-conflict reconciliation. Furthermore, despite his promotion of restorative ‘justice,’ the initiatives to date have all failed to adequately address past human rights abuses and crimes under international law.
And despite international opposition to the granting of amnesties, it has been reported recently that Ramos-Horta has offered Indonesian generals and their militia proxies amnesties for crimes against humanity committed during the occupation. But Fretilin party spokesman Jose Teixeira claims that Ramos-Horta has no right to amnesty alleged war criminals and that unlike in Indonesia, amnesties are not a recognised part of East Timor’s legal system. “Only the parliament can pass a general amnesty law, not the president,” he said.
As part of what the International Center for Transitional Justice calls East Timor’s policy of ‘appeasement’ towards Indonesia, it released the former Indonesian militia fighter Martenus Bere on August 30, drawing strong criticism from human rights groups. Bere was a member of a militia that attacked and killed pro-independence civilians, including priests, in September 1999, in what became known as the Suai massacre. He was arrested recently near the Indonesian border on an outstanding warrant for crimes against humanity, but was released from a Dili prison, allegedly on instructions from Gusmao, and as a result of pressure from Indonesia.
Bere’s release appears to undermine the principle of accountability, an issue that was emphasised by former UN Secretary-General Kofi Annan in 2006. In a report to the East Timorese Commission for Reception, Truth and Reconciliation in August of that year, Annan said that there can be no impunity for the serious human rights violations committed in East Timor. “Establishing the truth and promoting reconciliation are necessary parts of the healing process for both countries and victims,” Mr Annan said. “It would be deeply regrettable, however, if the reconciliation process foreclosed the possibility of achieving accountability.”
Clearly the two governments want to strengthen diplomatic ties and move forward. Although the East Timorese won independence, media reports all seem to suggest that survivors want the killers and the people who commanded them to be brought to justice.
The People of East Timor: Freedom to Pursue Justice
The East Timorese “see that their leaders have opted for reconciliation over justice. They understand the need for reconciliation,” said Christina Carrascalao, who works to help improve the lives of the survivors. “But at the same time they believe there must be justice if what happened is not to happen again.”
“I want the world to see that we need an international tribunal set up here in East Timor to bring back criminals who killed our families like animals and disposed of their bodies, which we haven’t been able to claim,” said victim Gracilda Santos Marques in a 2006 interview for ABC Australia’s Foreign Correspondent program. “Right now, the criminals are in Indonesia living a good life while we here continue to suffer without our fathers”.
In the final analysis, accountability can only be realistically achieved by Indonesia and East Timor. It is hard to tell whether Ramos-Horta is genuinely optimistic when he says that “Indonesians in their own time, on their own agenda … they’re the ones who eventually will bring to trial those in Indonesia responsible for crimes in Indonesia, in Aceh, in Irian Jaya and in East Timor.”
But without any formal apology still to come from the Indonesian Government for documented atrocities in East Timor, the reluctance of the East Timorese Government to agree to a criminal tribunal, and Ramos-Horta’s emerging amnesty policy, it seems that a decade later, justice has been denied for the victims of Indonesian atrocities.
It remains to be seen whether the people of East Timor will exercise their democratic rights, hard-won after 25 years of struggle, as weapons in a new fight: for justice.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
‘We Cry for Justice’: Impunity Persists Ten Years on in Timor-Leste
Amnesty International
August 2009
Final Report of the Commission for Truth and Friendship
May 2008
‘Justice on the Cheap Revisited’: The Failure of the Serious Crimes Trials in East Timor
By David Cohen, East-West Center
May 2006
Chega! - The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste: Executive Summary
October 2005
Situation of Human Rights in East Timor
Note by the Secretary-General, United Nations
December 10, 1999
East Timor Ten Years On: Justice Denied
Timorese men in traditional dress carry the East Timor national flag during a ceremony commemorating the 10th anniversary of the referendum that led to the country's independence from Indonesia in the capital of Dili, Sunday, Aug. 30, 2009. (AP Photo/Jordao Henrique)
The 10th anniversary of a United Nations-sponsored referendum which effectively ended Indonesia’s 25-year military occupation of East Timor has rekindled the debate on the merits of establishing an international criminal tribunal for crimes against humanity and other atrocities that were committed in the former Portuguese colony during the occupation, which culminated in a post-referendum campaign of violence in 1999 that claimed 1,400 lives.
In response to what it perceives as inadequate measures to dispense justice for atrocities in East Timor, Amnesty International on August 27 called upon the UN Security Council to immediately set up an international criminal tribunal with jurisdiction over all crimes committed in East Timor between 1975 and 1999.
But East Timorese President José Ramos-Horta, the founder of the Revolutionary Front for an Independent East Timor (Fretilin), which led the independence movement, disagrees. He stated on August 31 that his preference, “both as a human being, victim and head of state, is that we, once and for all, close the 1975-1999 chapters of our tragic experience and forgive those who did harm to us.” He went on to accuse “those in the US and UK” of simplistically asserting that “the absence of prosecutorial justice fosters impunity and violence.” He categorically asserted that there will be no tribunal.
But speaking at the World Economic Forum in January 2002, when he was interim Foreign Minister, Ramos-Horta had called upon the United Nations Security Council to establish a criminal tribunal to deal with the atrocities, in the spirit of the tribunals for the Balkans and Rwanda, though he was sceptical that this would be done: “The Security Council does not seem to have the courage to do what is logical, to set up a war crimes tribunal.”
It is not immediately clear what has sparked Ramos-Horta’s dramatic change in attitude since then. Perhaps it is the importance of forging better relations with Indonesia, or the importance of eliminating widespread poverty in the tiny nation, which he says is the real failure of the past 10 years. But considering his remarks together with the fact that the World Bank has advised East Timor that it needs to engage in trade with Indonesia to revive its economy, it becomes more obvious why Ramos-Horta thinks that “the greatest act of justice is that we are free today.”
The anniversary - and the responses it has provoked - has drawn attention to two competing theories of justice: the retributive model and the restorative model.
The Failure of Retributive Justice: Crime without Punishment
The prevailing justice paradigm for genocide, crimes against humanity and war crimes is that of prosecution and punishment, through the allocation of individual criminal responsibility. For evidence of this, one need only look at the overwhelming international support for the only permanent international criminal tribunal, the International Criminal Court, as well as the ad hoc tribunals for the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the Cambodia Tribunal.
In 1999, at the height of the violence in East Timor, the Security Council in Resolution 1264 recognised the situation as constituting a threat to international peace and security and demanded that those persons responsible for systematic, widespread and flagrant violations of international humanitarian and human rights law be brought to justice. It stopped short however, of calling for an international criminal tribunal.
Then, a UN report of December 10, 1999 entitled Situation of Human Rights in East Timor – compiled by three UN thematic Special Rapporteurs - recommended the establishment of an international criminal tribunal by the Security Council, preferably with the consent of the Indonesian government, but it stated that “such consent should not be a prerequisite.” It called for prosecutions of those responsible “both directly and by virtue of command responsibility, however high the level of responsibility.” Such a tribunal, they recommended, should have jurisdiction over all crimes under international law committed by any party in the Territory since the departure of the Portuguese in 1975. No such Tribunal was ever established.
At a more local level, more progress was made. The UN Special Panel for Serious Crimes in East Timor was established by the UN Transitional Administration in East Timor (UNTAET) to try serious criminal offences that occurred during 1999. This hybrid East-Timorese-international tribunal convicted 84 individuals, but most of them were low-level defendants - not high-ranking commanders - who had participated in local-level pro-Indonesia militias. Only a few were low-ranking members of the Indonesian Armed Forces. Over 75 per cent of the people indicted remain at large and only one person is in prison in East Timor for crimes committed in 1999.
A total of 303 arrest warrants were issued, including one which remains outstanding for the former General Wiranto, the commander of Indonesian troops in East Timor in 1999, who was indicted for crimes against humanity. In his 2006 report, ‘Justice on the Cheap’ Revisited: The Failure of the Serious Crimes Trials in East Timor, David Cohen writes that the issuance of the arrest warrant against Wiranto led to a total breakdown in co-operation between the investigative Serious Crimes Unit and the Prosecutor-General of East Timor. Further, the Government of East Timor refused to authorise Interpol to issue an international arrest warrant. According to Cohen, East Timorese governmental elites never supported the trials, their main priority being friendly relations with their powerful neighbour. The major stumbling block for the tribunal was that the accused were Indonesian nationals and the government of Indonesia refused to turn them over to East Timor or to the United Nations forces, but Cohen also writes that the tribunal was plagued by funding and staffing issues.
The antagonism of the Indonesian Government towards extradition requests continues today. As recently as September 10, in relation to the recently-opened Australian war crimes investigation into the deaths of five journalists by Indonesian government forces at Balibo in 1975, Government spokesman Theo Sambua categorically denied that Indonesia would co-operate: “If they want us to hand over our people, to agree to any extraditions, certainly not”.
Such opposition would be warranted if Indonesia had conducted legitimate and fair prosecutions on its own watch. Instead, its efforts in this respect ended up being farcical, and failed to provide accountability. Indonesia set up an Ad Hoc Human Rights Court with the stated intention of bringing to justice those responsible for the 1999 killings. But it acquitted all eighteen of the Indonesian Armed Forces officers suspected of orchestrating the violence, including General Wiranto. The only person jailed was Eurico Guterres, the leader of an anti-independence militia, who was later acquitted after the Supreme Court - which had in 2006 upheld his ten-year sentence - decided he was not responsible for the killings carried out by his subordinates.
Not a Matter for the UN Security Council
Whilst the initiatives taken so far to prosecute perpetrators of serious crimes in East Timor have not borne fruit, and although the idea of prosecuting Indonesian military commanders for war crimes is relatively uncontroversial outside Indonesia and East Timor, the emphasis on a tribunal established by a Resolution of the Security Council a decade later may be misguided. The Tribunals that it created, the ad hoc Tribunals for the Former Yugoslavia and Rwanda, were established contemporaneously, and pursuant to Chapter VII of the UN Charter, to restore international peace and security. Similarly, in the case of Sierra Leone, the Security Council in Resolution 1315 considered that the security situation continued to “constitute a threat to international peace and security in the region” and therefore requested the Secretary-General to begin negotiations with the Sierra Leonean government to create the Special Court for Sierra Leone.
It may be difficult to for the Security Council to make the case that the establishment of a tribunal for East Timor now, 10 years after the end of the violence, is necessary in order to maintain international peace and security.
On the other hand, the Cambodia Tribunal was established in 2006, long after the murderous Khmer Rouge had been toppled from power in 1979. The key aspect of that hybrid tribunal however, is that is a joint court established by agreement between the United Nations General Assembly and the Government of Cambodia, which transmitted the request for such a court.
It is difficult to see how a similar hybrid tribunal for East Timor would be established without a similar request, or at the very least, by consent of the Government of East Timor.
Restorative Justice: Remembering in Order to Forget
In any case, retributive justice is arguably not the only form of ‘justice’, and East Timor’s leaders have in more recent times advocated for restorative justice in the interests of leading both nations ‘forward’. South Africa’s Truth and Reconciliation Commission, one of the most widely discussed examples of restorative justice, was established in the interests of national reconciliation, but its success is open to debate. Many victims of Apartheid-era abuse felt that the TRC had failed to achieve reconciliation between the black and white communities and were angered at amnesties being granted to perpetrators of serious violence.
A series of similar inquiries were conducted by Indonesia and East Timor after the violence in East Timor ended in 1999, all with questionable success.
In January 2000, the UN International Commission of Inquiry on East Timor submitted its report to the UN Secretary-General. The commission concluded that Indonesian armed forces were responsible for “patterns of gross violations of human rights which… took the form of systematic and widespread intimidation, killings and massacre, humiliation and terror, destruction of property, violence against women and displacement of people.” The Commission recommended that the UN establish an international human rights tribunal.
The Indonesian government passed a law in 2004 creating a national Truth and Reconciliation Commission (TRC) to begin to confront past abuses, but the law was severely flawed. Following a constitutional challenge, it was revised in 2007, but retained its original shortcomings including mechanisms to recommend amnesty for perpetrators of serious crimes.
In January 2006, former East Timorese President Xanana Gusmao handed a report of the East Timorese Commission for Reception, Truth and Reconciliation to UN Secretary General Kofi Annan. The Commission had been established in 2001 under UNTAET. The report, entitled Chega! - meaning “stop” or “enough” in Portuguese - catalogued human rights abuses perpetrated by Indonesian forces during the occupation, including deliberate starvation and rape, and it suggested that the military used napalm bombs and other chemicals to poison food and water during the initial invasion in 1975. The report estimates that between 84,000 and 183,000 people were killed between 1975 and 1999, and that 90 per cent died from hunger and diseases as a result of Indonesian repression.
Gusmao said that the Chega! report’s main purpose was to establish the truth as to what happened so that it may not happen again. “It is not so important to look at the figures. It is more important to look at the lessons,” he explained. “We don’t advocate punitive justice but restorative justice.”
The Politics of Truth: Amnesty and Apology
Speaking on ABC Radio Australia on July 27, Ramos-Horta drew attention to the 2005 Joint East Timorese-Indonesian Commission on Truth and Friendship (CTF) that he and former President Xanana Gusmao established together with the Government of Indonesia to record human rights abuses committed in 1999, which Cohen argues was the manifestation of the mutual policy of strong diplomatic ties rather than prosecuting individuals. “Indonesia showed courage and maturity in accepting this joint commission,” Ramos-Horta pointed out, “and then [they] accepted the findings.”
However, what Ramos-Horta didn’t say was that the United Nations boycotted the CTF proceedings, whose mandate included provisions allowing for the recommendation of amnesties, but preventing the Commission from recommending prosecution. “The UN cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them,” stated UN Secretary-General Ban Ki-Moon. “Unless the terms of reference are revised to comply with international standards, officials of the United Nations will, therefore, not testify at its proceedings or take any other steps that would support the work of the CTF and thereby further the possible grant of amnesties in respect of such acts.”
The international criticism received by the Commission, as well as the Commission’s finding that Indonesian military witnesses were evasive and untruthful, led to its decision not to grant any amnesties. The CTF report published in July 2008 found that the Indonesian military, the Indonesian civilian government and anti-independence militias were institutionally responsible for thousands of “gross human rights violations in the form of crimes against humanity” including “murder, rape, and other forms of sexual violence, torture, illegal detention and forcible transfer and deportation” against East Timorese civilians. Its findings are consistent with reports by United Nations and Indonesian human rights investigators. While the report is generally perceived to be credible and comprehensive, it still left a significant gap to be filled in terms of holding individuals to account.
One of the recommendations of the CTF was for both countries to issue an apology - although it is unclear exactly to whom East Timor should apologise - yet Ramos- Horta admitted on radio that no apology has yet been received from Indonesia. “I am ready when Indonesia decides it is ready to issue an apology,” he said.
The absence of an apology calls into question Ramos-Horta’s implicit claim that the two countries are ready to move on. Several scholars have recognised the central importance of apologies to the process of post-conflict reconciliation. Furthermore, despite his promotion of restorative ‘justice,’ the initiatives to date have all failed to adequately address past human rights abuses and crimes under international law.
And despite international opposition to the granting of amnesties, it has been reported recently that Ramos-Horta has offered Indonesian generals and their militia proxies amnesties for crimes against humanity committed during the occupation. But Fretilin party spokesman Jose Teixeira claims that Ramos-Horta has no right to amnesty alleged war criminals and that unlike in Indonesia, amnesties are not a recognised part of East Timor’s legal system. “Only the parliament can pass a general amnesty law, not the president,” he said.
As part of what the International Center for Transitional Justice calls East Timor’s policy of ‘appeasement’ towards Indonesia, it released the former Indonesian militia fighter Martenus Bere on August 30, drawing strong criticism from human rights groups. Bere was a member of a militia that attacked and killed pro-independence civilians, including priests, in September 1999, in what became known as the Suai massacre. He was arrested recently near the Indonesian border on an outstanding warrant for crimes against humanity, but was released from a Dili prison, allegedly on instructions from Gusmao, and as a result of pressure from Indonesia.
Bere’s release appears to undermine the principle of accountability, an issue that was emphasised by former UN Secretary-General Kofi Annan in 2006. In a report to the East Timorese Commission for Reception, Truth and Reconciliation in August of that year, Annan said that there can be no impunity for the serious human rights violations committed in East Timor. “Establishing the truth and promoting reconciliation are necessary parts of the healing process for both countries and victims,” Mr Annan said. “It would be deeply regrettable, however, if the reconciliation process foreclosed the possibility of achieving accountability.”
Clearly the two governments want to strengthen diplomatic ties and move forward. Although the East Timorese won independence, media reports all seem to suggest that survivors want the killers and the people who commanded them to be brought to justice.
The People of East Timor: Freedom to Pursue Justice
The East Timorese “see that their leaders have opted for reconciliation over justice. They understand the need for reconciliation,” said Christina Carrascalao, who works to help improve the lives of the survivors. “But at the same time they believe there must be justice if what happened is not to happen again.”
“I want the world to see that we need an international tribunal set up here in East Timor to bring back criminals who killed our families like animals and disposed of their bodies, which we haven’t been able to claim,” said victim Gracilda Santos Marques in a 2006 interview for ABC Australia’s Foreign Correspondent program. “Right now, the criminals are in Indonesia living a good life while we here continue to suffer without our fathers”.
In the final analysis, accountability can only be realistically achieved by Indonesia and East Timor. It is hard to tell whether Ramos-Horta is genuinely optimistic when he says that “Indonesians in their own time, on their own agenda … they’re the ones who eventually will bring to trial those in Indonesia responsible for crimes in Indonesia, in Aceh, in Irian Jaya and in East Timor.”
But without any formal apology still to come from the Indonesian Government for documented atrocities in East Timor, the reluctance of the East Timorese Government to agree to a criminal tribunal, and Ramos-Horta’s emerging amnesty policy, it seems that a decade later, justice has been denied for the victims of Indonesian atrocities.
It remains to be seen whether the people of East Timor will exercise their democratic rights, hard-won after 25 years of struggle, as weapons in a new fight: for justice.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
‘We Cry for Justice’: Impunity Persists Ten Years on in Timor-Leste
Amnesty International
August 2009
Final Report of the Commission for Truth and Friendship
May 2008
‘Justice on the Cheap Revisited’: The Failure of the Serious Crimes Trials in East Timor
By David Cohen, East-West Center
May 2006
Chega! - The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste: Executive Summary
October 2005
Situation of Human Rights in East Timor
Note by the Secretary-General, United Nations
December 10, 1999
Related posts: