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The individuals responsible for the killing, mass destruction, and forced expulsions that convulsed East Timor last September must be brought to justice. The United Nations and its member states, actively involved in East Timor at the time of the carnage, have a particular obligation to see that justice is done. International investigators have called for establishment of an international tribunal. The new civilian government of Indonesia, whose own investigative team issued a report implicating Indonesian military and government officials in the violence, has insisted that it will take responsibility for bringing suspects to justice in Indonesian courts.
Human Rights Watch believes that the duty to prosecute gross human rights violators rests in the first place with national courts, so long as fundamental standards of justice and fairness can be met. Indonesia should have a chance to carry out prosecutions with the requisite independence and integrity. If Indonesia is unable to do so, however, the international community should be prepared to step in and set up an international tribunal. This means that U.N.-sponsored investigations in East Timor should continue and that the proposal for an international tribunal should be kept under active discussion even as the international community studies the progress of the Indonesian effort.
The Indonesian investigators assigned to East Timor deserve credit for their courageous and professional work, and justice officials in the new reform government of Abdurrahman Wahid have pledged serious prosecutions. This is a critical moment for Indonesia as it pushes forward with democratic reform. Successful prosecutions are essential not only to establish justice for East Timorese victims, but also to establish the principle that the Indonesian armed forces are accountable to law.
While the international community has a particular stake in seeking redress for the violations in East Timor, lack of accountability for military abuses elsewhere in the archipelago has undermined the legitimacy of government institutions, fueled internal conflicts, and continues to plague full realization of the rule of law in Indonesia. Ending impunity is essential if Indonesia is to avoid what could be even larger explosions of violence in the future. Credible prosecutions for what took place in East Timor would serve as a useful first step and as a model for prosecution of other leading human rights cases, including atrocities committed during counterinsurgency operations in the provinces of Aceh and Papua (formerly Irian Jaya), and against Muslim and student activists in Jakarta.
There should be no illusions: Indonesia faces significant economic, political, and institutional obstacles to successful prosecutions. If not addressed, these obstacles could cripple efforts on justice for East Timor and lead to a rollback of the reform agenda within Indonesia. It is therefore incumbent on foreign governments and international donors to offer all appropriate assistance to Indonesia, including financial and logistical support for investigations. To ensure that justice is done, however, such support must be conditioned on the prosecutions meeting minimum international standards of justice and fairness. At the end of this memorandum, we attach a list of benchmarks to which Indonesia should be held.
We also urge the immediate creation of a U.N.-appointed committee of experts to assist the Indonesian effort. The committee, comprised of recognized experts on international justice, should provide advice on structuring the court, monitor trial proceedings, and report back to the U.N. Secretary General on Indonesia's progress in meeting minimum international standards.
This briefing analyzes existing obstacles to successful prosecutions in Indonesia, sets forth specific recommendations for what assistance the international community should provide, and lists specific benchmarks that Indonesia should meet to satisfy minimum international standards of justice and fairness.
BACKGROUND
Following the announcement by the United Nations on September 4, 1999 that nearly eighty percent of East Timorese voters had rejected continued Indonesia rule, East Timor was the site of orchestrated mayhem. In the days and weeks following the announcement, an estimated seventy percent of homes and buildings across East Timor were destroyed, more than two-thirds of the population was displaced, and more than 200,000 East Timorese fled or were forcibly taken, often at gunpoint, across the border into Indonesian West Timor. Hundreds of civilians were killed; thousands were injured; many are still trapped in West Timor today.
In a report to U.N. Secretary General Kofi Annan made public on January 31, 2000, the U.N. International Commission of Inquiry on East Timor documented a pattern of systematic and widespread intimidation and terror, destruction of property, violence against women, forced displacement, and attempts to destroy evidence. It concluded that Indonesian army and police leaders, together with militias armed and organized by Indonesian security authorities, were responsible. Indonesia's own commission of inquiry (KPP-HAM) reached the same conclusions.
The United Nations and its member states have a particular obligation to see that justice is done for the crimes committed in East Timor. The United Nations funded and was intimately involved in supervising the ballot that preceded the violence, U.N. personnel were among the targets of the violence, and many U.N. personnel were witnesses to crimes committed against the East Timorese. In addition, as the International Commission of Inquiry noted in its report, "[t]he actions violating human rights and international humanitarian law in East Timor were directed against a decision of the United Nations Security Council acting under Chapter VII of the Charter and were contrary to agreements reached by Indonesia with the United Nations to carry out that Security Council decision." (Report of the International Commission of Inquiry on East Timor to the Secretary General, January 2000, para. 147).
Indonesia continues to insist that it will take responsibility for bringing perpetrators to justice. Under international law, Indonesia has primary responsibility for taking action against suspected perpetrators of gross abuses who are present on its soil. In early February 2000, Indonesian Attorney General Marzuki Darusman responded to the release of the international commission report and KPP-HAM report by stating that he would attempt to complete preliminary investigations within three to six months and likely would issue the first indictments even sooner.
This is a particularly difficult time for Indonesia. Although the country has made significant progress in recent months, its economy has still not recovered from the crash of 1997-98, decades of authoritarian rule have left a legacy of weak civilian institutions, and the reform movement is still in its infancy. In addition, there is considerable resentment in Indonesia of the international attention that the East Timorese cause has received, raising the specter of a nationalist backlash and making it all the more important that the international community find appropriate ways to support the efforts of Indonesian justice officials.
Assistance should particularly support efforts to overcome institutional weaknesses. The Indonesian judiciary has had little power since the late 1950s, when Indonesia's first president, Sukarno, assumed increasingly authoritarian powers under what he called "Guided Democracy" and severely curtailed the independence of the judges. The reputation of the courts continued to suffer during the militaristic rule of Soeharto. Although ambitious reform efforts are now underway, the courts are still staffed by Soeharto-era appointees notorious for corruption in commercial cases and doing the bidding of power holders in political cases. Only a handful of judges have shown any independence. In addition, having just emerged from four decades of authoritarian rule, Indonesia lacks a well-developed human rights jurisprudence.
Under existing Indonesian procedures, cases involving alleged military abuses against civilians can in some circumstances be prosecuted in joint civilian/military proceedings called "connectivity" (koneksitas) proceedings. Such proceedings are heard by panels of judges drawn from both civilian and military judiciaries. The government currently is planning to use this procedure for the first human rights trial in Aceh, now scheduled to begin in April 2000. Human Rights Watch believes that this approach is flawed and should not be used for the East Timor prosecutions, the Aceh trials, or other cases of gross human rights violations. One problem is that the military judges on each panel can be expected to be biased in favor of military defendants. A second defect is that although a majority of the judges in such proceedings would be civilians, they would be drawn exclusively from the pool of sitting judges whose independence is still very much in question. A third problem is that Indonesia's existing criminal code does not specify many human rights offenses recognized under international law.
In part to rectify this situation, Indonesia is currently contemplating creating new "human rights courts" by an act of parliament. The KPP-HAM report expressly recommended the creation of such courts. We emphasize that such courts do not yet exist in Indonesia and are only now under discussion. It remains to be seen whether such courts, even if established, would adequately safeguard the independence of prosecutors and judges and would otherwise meet international standards. An early draft of the implementing legislation provided jurisdiction over genocide, torture, and discrimination, but did not confer jurisdiction over crimes against humanity (defined in international law to include severe abuses committed as part of widespread or systematic attacks on a civilian population). In addition, the temporal jurisdiction of the courts continues to be a subject of contention. Although some Indonesian legal specialists are calling for jurisdiction over offenses going back fifteen or more years, others are arguing that the courts should have jurisdiction only over future human rights violations, leaving past cases to be prosecuted by existing courts or dealt with by a proposed national truth commission.
RECOMMENDATIONS
Given the conditions detailed above, the international community has an obligation to closely monitor the Indonesian effort, insist on guarantees for the independence and integrity of the process, and provide financial and logistical assistance to strengthen Indonesia's capacity to see the prosecutions through to conviction. Human Rights Watch recommends the following:
1. Benchmarks. Indonesian prosecution of the human rights crimes committed in East Timor should meet minimum international standards of justice and fairness. A list of minimum acceptable standards for a credible and legitimate court are attached at the end of this memo. International support should be contingent on Indonesia meeting the benchmarks.
2. Impartial Investigators. In his preliminary investigations, Indonesian Attorney General Marzuki Darusman is being assisted by an ad hoc team that includes military police and national police investigators. The Indonesian government has an obligation to ensure that all investigators are professional and impartial and, in particular, that the potential institutional loyalty of military and police investigators does not undermine their objectivity and jeopardize the integrity of the process.
3. Structure of the Court. Human Rights Watch strongly urges the creation of human rights courts in Indonesia with specific guarantees for the independence of prosecutors, judges, and staff. We believe that the poor track record of existing Indonesian courts and the perceived bias of existing court personnel are sufficient reasons to insist on establishment of these courts. Any new courts should be permanent rather than temporary, ad hoc institutions. International experience suggests that it is dangerous to create a precedent for ad hoc national courts. Although the first such courts may be set up to advance human rights, the precedent can be too easily misused by future governments to justify setting up special courts for purposes inimical to human rights.
4. Jurisdiction. The courts should be given jurisdiction over all gross human rights violations and this jurisdiction should include, in addition to criminal offenses already specified in existing Indonesian law, the human rights offenses specified in the statute of the International Criminal Court. Where appropriate, Indonesian law makers should seek guidance from the definitions of offenses used in the existing ad hoc tribunals for the former Yugoslavia and Rwanda. Although many human rights offenses, including crimes against humanity, have not yet been incorporated into Indonesia's criminal code, such offenses were recognized as part of international customary law at the time of the violence in East Timor. Indonesian law should be amended to acknowledge the pre-existing nature of the offenses, to codify them, and to specify appropriate penalties.
5. U.N.-Appointed Committee of Experts. An internationally funded, U.N.-appointed committee of experts should be created to provide expert advice to the Indonesian government on international legal standards and creation of a special court, and to monitor trial proceedings. It should also be mandated to report back periodically to the Secretary General on Indonesia's progress in meeting minimum benchmarks. Members of the committee should be chosen from among recognized experts in international law and human rights jurisprudence.
6. Temporal Scope. Both the international and Indonesian commissions of inquiry limited their investigations to crimes committed in East Timor since January 1999 when then Indonesian President B.J. Habibie announced the possibility of a ballot on the future political status of East Timor. This focus, however, should in no way foreclose future prosecutions for other crimes committed in the twenty-five years since Indonesia invaded and first occupied East Timor in 1975.
7. Truth Commission. The Indonesian government is currently contemplating creating a national truth commission to look into the thousands of cases of human rights violations that took place during the Soeharto era and in the tumultuous two years since then. Indonesian justice officials have indicated that they see a truth commission as a way of avoiding being overwhelmed by a flood of cases. The most senior culpable officials should not escape prosecution. Although governments responding to past atrocities have a responsibility to pursue truth as well as justice, the two objectives are complementary and one cannot substitute for the other.
8. Indonesian Military Reform. The Indonesian military and police should institute administrative procedures to remove human rights violators from the ranks and ensure that the reputation of the armed forces is not further tarnished by associations with past abuses. Indonesia has an obligation under international law to take meaningful steps to avoid repetition of such crimes.
9. Justice in Indonesia. There is little likelihood of serious East Timor prosecutions in Indonesia if serious efforts are not made simultaneously to pursue justice for military abuses elsewhere in the country. Concerned foreign governments should support efforts to achieve justice in all such cases. For Indonesia, the trials will have significance far beyond what took place in East Timor. Public demands for justice for past abuses committed by the military are also prominent in Aceh and Papua (formerly Irian Jaya), and many other atrocities and "disappearances" remain unaddressed or unresolved, from the large-scale killings of communists and alleged sympathizers in 1965 to politically motivated attacks on Muslims, student activists, and others in the 1980s and 1990s.
10. International Investigations. It is imperative that international investigations continue if there is to be any hope of serious pursuit of justice for East Timorese victims in Indonesia or anywhere else. Prosecutions require good evidence. Much of that evidence is still in East Timor. After a slow start, international investigations on the ground in East Timor are just beginning to produce results and new evidence continues to be uncovered on almost a daily basis. It takes time, resources, and skilled investigators to build the kind of cases necessary to win convictions against perpetrators and planners of the atrocities, and international investigators are in the best position to preserve evidence that will hold up in court. Perhaps most critically, international investigations must continue so that, if for any reason an international tribunal proves necessary, the foundations will have been laid.
11. Concurrent Jurisdiction. Indonesia is only one of several places where perpetrators can be pursued. Human Rights Watch also supports establishment of an autonomous, local tribunal in East Timor. The latter tribunal would have concurrent jurisdiction over the crimes committed in East Timor and could begin its work even as the Indonesian effort progresses. The possibility of prosecutions in third-party countries for crimes of universal jurisdiction (as, for example, in the Pinochet case) should also be kept open. Where the proceedings meet internationally recognized standards and the penalties are commensurate with the serious nature of the crimes, the principle of non bis in idem should apply: persons prosecuted and punished in one jurisdiction should not then be subject to prosecution and punishment in another jurisdiction for the same crime. Finally, as discussed above, the proposal for an international tribunal should be kept under active discussion and should be aggressively pursued if the Indonesian effort fails to achieve substantial justice.
BENCHMARKS
Human Rights Watch considers the following to be the minimum acceptable standards for a credible and legitimate tribunal:
1. Legal Basis of the Tribunal. The tribunal's jurisdiction, competence, fair trial guarantees, rules of procedure, and evidence should be drawn from international standards, the International Criminal Court, and, where appropriate, precedents of the two existing ad hoc international tribunals for the former Yugoslavia and Rwanda.
2. Organization of the Tribunal. A new tribunal would require at least one and possibly more
trial chambers (depending on the case load) and provision for independent appellate review.
3. Personnel. It is essential for the credibility of the tribunal that the judges, prosecutor,
and staff be individuals of high moral character, impartiality, and integrity who possess experience in criminal law and international law, including international humanitarian and human rights law.
4. Subject Matter Jurisdiction. The tribunal should be given jurisdiction not only over crimes defined in the Indonesian criminal code such as murder, battery, torture, kidnaping, and rape, but also over crimes subject to universal jurisdiction under international law, including crimes against humanity. The definitions of these crimes should be drawn from the statute of the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda.
5. Protection of Witnesses and Personnel. Programs must be established for the protection of
witnesses and the security of all other participants, including judges and lawyers as well as investigators and defendants and prisoners. This protection must be available from the earliest investigatory stage through post-trial measures. In particular, the court must be able to take security measures to protect witnesses and victims and their families from reprisals. Such measures must not prejudice the rights of suspects and accused.
6. Fair Trial and Due Process. The tribunal should ensure the highest international standards
of fair trial and due process at all stages of the proceedings. Particularly given the mistrust of official institutions in Indonesia, justice must not only be done, but be seen to be done. Therefore, the tribunal must be scrupulous in its respect for international standards including Articles 10 and 11 of the Universal Declaration of Human Rights (Universal Declaration); and Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR).
7. Circumstances of Arrest and Conditions of Confinement. No one should be subject to arbitrary arrest and detention in contravention of Article 9 of the Universal Declaration and Article 9 of the ICCPR. All prisoners should be treated humanely in accordance with Article 10 of the ICCPR; the U.N. Standard Minimum Rules for the Treatment of Prisoners; the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and Articles 7 and 15 of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
8. Death penalty. There should be no provision for the death penalty, in accordance with the statute of the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda.
9. Pardons and amnesties. Amnesties, which essentially erase the criminality of past bad acts from the record, should be barred. If exceptional circumstances arise in which the granting of an individual pardon is contemplated, the extreme seriousness of the offenses should be taken into account so as not to undermine the decisions of the courts and rob the whole effort of legitimacy.
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