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Unfinished Business: Justice for East Timor
One year after the U.N.-supervised referendum on the future of East Timor and the scorched earth destruction that followed, not a single perpetrator has been brought to justice.
What took place last September is not in serious dispute. On August 30, 1999 East Timorese overwhelmingly voted for independence. Immediately after U.N. officials announced the results on September 4, Indonesian army-backed militias began a campaign of murder, arson, and forced expulsions.
Substantial evidence--from East Timorese witnesses, hundreds of U.N. staff, and international volunteers and observers present for the vote--has long shown that the response was organized and systematic, the product of a one-sided campaign involving both Indonesian military officers and pro-Indonesia Timorese militias aimed at avenging Indonesia's loss at the polls and, possibly, at discrediting the ballot. The only question is precisely who within the Indonesian military chain of command was responsible.
The United Nations has recognized that it has a special obligation to see justice done. On January 31, 2000, an international commission of inquiry set up by U.N. Secretary General Kofi Annan concluded that the role of the U.N. in East Timor at the time the violence and the systematic and large-scale nature of the crimes warranted the establishment of an international criminal tribunal. To date, the U.N. Security Council has declined to establish such a tribunal, deferring instead to the Indonesia government's stated intention to bring those responsible to justice.
The U.N. has not simply sat idly by, however. To ensure that justice is done within East Timor and in part as a check on the Indonesian effort, the U.N. Transitional Administration in East Timor (UNTAET) now has a dedicated "Serious Crimes Investigations Unit" in place and has set up special international judicial panels to hear cases from 1999. It also has more than seventy militia suspects in detention. Evidence, witnesses, suspects, and prosecutorial efforts are thus divided between Indonesia and U.N.-administered East Timor.
This is a critical moment. Indonesia has said that it will announce the names of twenty or more suspects this week, but, a year after proclaiming it would take the lead in prosecuting responsible individuals, its legal system remains dysfunctional, and it has failed to demonstrate the necessary political will to move the prosecutions forward. It has failed to arrest even one of the many militia leaders known to have been directly involved in atrocities and still lacks a sound legal foundation for holding leaders accountable. The newest hurdle is a constitutional amendment that likely will prevent Indonesian prosecutors from charging suspects with internationally recognized offenses such as crimes against humanity, limiting them instead to offenses already specified in the Indonesian Criminal Code. This is significant not only as a barrier to justice for the crimes committed during the U.N.-supervised ballot process, but for the even larger crimes committed in East Timor during the Soeharto era.
For its part, UNTAET, after a slow start, has the proper legal foundation and the wherewithal to build strong cases and see them through, but none of the highest-ranking suspects are currently in East Timor.
This background briefing begins with specific recommendations on how best to ensure that justice is done for East Timor. It provides a detailed, chronological account of what has been done, and what not done, over the past year to bring those most responsible for the terror and destruction to account. It also describes obstacles still in place to successful prosecutions in both Indonesia and U.N.-administered East Timor, including the difficulties arising from mutual distrust and the still ill-defined nature and extent of proposed collaboration between the respective prosecutor's offices.
To the U.N. Secretary General and members of the Security Council:
In addition to the fact that key potential defendants are in Indonesia, the strongest reason to continue to give the Indonesian legal system additional time to succeed is that the first cracks in the facade of military impunity are beginning to appear in Indonesia. The East Timor investigation has played an important role in starting the process. Formerly untouchable generals have been named as suspects in this and other cases; examination of high-ranking officials under oath has started; and new evidence on military headquarters complicity in covert operations in East Timor in 1999 has begun to emerge. Thorough, timely, and public review by international authorities of efforts to date, owed to the East Timorese, will also remind Indonesian leaders of the imperative of continued progress.
To UNTAET administrators:
According to the terms of an April 6, 2000 Memorandum of Understanding on Legal Exchange (MOU) between UNTAET and the Indonesian government, the two sides are to share evidence and make witnesses and suspects available in the other jurisdiction upon request. As a practical matter, the level of cooperation has been limited by UNTAET's fears both for witness safety and for the integrity of evidence given to the Indonesian team, which includes investigators from the army and police. Mistrust is likely to grow and new issues are likely to arise, moreover, if and when plans for prosecutions grow more concrete. To test the MOU, which envisions dual but complementary prosecutions in the two jurisdictions, the two sides should try out complementary test cases and carefully evaluate the results before additional plans for cooperation are made.
Given the continuing weaknesses of the Indonesian effort, cooperation could backfire: UNTAET could end up assisting an effort that fails to do justice by exonerating a key defendant but is credible enough to win the defendant some measure of "double jeopardy" protection from prosecutions outside Indonesia. UNTAET should therefore choose with care the test case with which it agrees to assist the Indonesian team. Cooperation beyond the initial test case should depend on the credibility of the Indonesian prosecution. It is also essential that UNTAET justice officials ensure the safety of any East Timorese witnesses or victims brought to Indonesia.
To the East Timorese (CNRT(1)) leadership:
To the Indonesian government:
To the international community and donor countries:
Following the announcement by the United Nations on September 4, 1999 that nearly 80 percent of East Timorese voters had rejected continued Indonesia rule, East Timor became the target of orchestrated mayhem. The broad outlines of what took place are clear and witnesses--including East Timorese, U.N. staff, and international observers--are legion. This was no spontaneous outburst or flare-up of civil war but a one-sided campaign of terror and destruction aimed at those who voted for succession from Indonesia.
Best estimates currently put the number of East Timorese civilians killed at over one thousand; thousands of others were injured--shot, stabbed, beaten, or raped. In a matter of days, militias and their army backers had destroyed some 70 percent of the infrastructure of East Timor had been destroyed, including homes, clinics, and water and electrical systems; before departing, Indonesian soldiers set their own command posts and former barracks alight. More than 250,000 people, over a quarter of East Timor's population, were carried in convoys into Indonesian territory after the vote, where tens of thousands remain to this day, some as virtual prisoners of the army-backed militias. The evidence points to a systematic, planned campaign to destroy East Timor, forcibly relocate much of the population, and discredit the independence vote. The only remaining question is who within the military chain of command was responsible for it.
The Indonesian army was not directly involved in every violent incident, but in every case the perpetrators included members of East Timorese militias that the army had armed and trained. Militia leaders were seen entering and leaving Indonesian military command posts and government offices as the campaign of violence unfolded. Indonesian military and police were seen merely standing by at the scene of many of the worst atrocities, this despite Indonesia's pledge to the international community to provide security during and after the ballot. Special forces troops disguised as militia members directly took part in at least some of the attacks.
Because of the large U.N. and international contingent, the onslaught attracted immediate world attention. International pressure, which had been noticeably absent as militia violence was escalating in April, May, and June 1999, eventually forced Indonesian President Habibie to acknowledge that he could no longer control the situation, although many suspected that orders for the scorched earth campaign had in fact come from Jakarta. On September 9, Habibie declared martial law in East Timor, and, on September 12, he requested the assistance of a multinational force led by Australia. On September 15, the U.N. Security Council passed a resolution authorizing the International Force in East Timor, or Interfet, to be sent, and the first troops began arriving on September 20. They found a devastated and burned out country.
On September 21, Sander Thoenes, a Dutch journalist for the Financial Times (London) who had returned to Dili, was killed by men in Indonesian military uniforms. Clashes between Interfet forces and militia members continued to take place as the U.N. reestablished itself in East Timor.
Justice: The Initial Indonesian and International Responses
From the outset, the Indonesian government responded to the international outcry over East Timor by insisting that it would 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. On September 22, 1999 Indonesia formed a special investigative team (known by its Indonesian acronym: KPP-HAM) to undertake an inquiry into events in East Timor, seeking to avoid, in its chairman's words, "foreign intervention." It was mandated to investigate genocide, extrajudicial executions, rape, torture, and arson, with anyone indicted to be tried before a proposed Indonesian human rights tribunal.
In late September, a special session of the U.N. Commission on Human Rights (CHR) was convened in Geneva. On September 27, CHR passed a resolution, over the objections of Indonesia and other Asian countries, calling on the Secretary-General to establish an international commission of inquiry into violations of international humanitarian law in East Timor. With violence still unfolding, Indonesia lobbied hard against the CHR resolution and managed to get language inserted in the resolution stating that the international inquiry would be undertaken only in cooperation with Indonesia's own inquiry.
When the CHR voted to create an international commission of inquiry, Indonesian foreign minister Ali Alatas formally rejected the resolution, saying it was not binding and that Indonesia was under no obligation to cooperate with international investigators. Despite the rhetoric, however, the U.N.'s actions had a significant impact on developments within Indonesia in September and October.
In Indonesia, Soeharto had been forced to step down over a year earlier and there were already plans in the works for new legislation and new courts (allowing recruitment of judges from outside Indonesia's corrupt and discredited judiciary) to try human rights crimes. In the weeks following the CHR resolution, Indonesia made important progress in pushing the plans forward. Progress, however, was to prove short-lived.
Prompted by international pressure, the Indonesian government moved quickly to develop new legal instruments for its own East Timor tribunal. A human rights law that had long been pending was quickly enacted on September 29, 1999. Within about two weeks, Muladi, the Justice Minister in the Habibie government, had drafted a presidential decree providing the legal basis for establishing special courts to hear cases involving gross abuses of human rights. The decree, technically a "Government Regulation [Issued] in Lieu of Legislation" (Peraturan Pemerintah Pengganti Undang-Undang or Perpu) conferred jurisdiction over genocide, slavery, forced disappearances, arbitrary or extra-judicial executions, systematic discrimination, and torture. President Habibie signed the decree on October 8, 1999.
The KPP-HAM investigative team was strengthened with the addition of prominent Indonesian human rights activists and lawyers. After the election of Abdurrahman Wahid as president in November and the appointment of former National Human Rights Commission chair Marzuki Darusman as attorney general, the Indonesian government renewed its commitment to seeing justice done. By November, the work of the KPP-HAM team was well underway, including the exhumation on November 25 of twenty-six bodies just three kilometers inside Indonesian West Timor. Although many East Timorese witnesses did not wish to meet with the Indonesian team and distrusted its motives, Indonesian investigators made visits to East Timor in December and January, gathering information from a range of sources including NGOs, international observers, and UNTAET.
While the Indonesian inquiry moved ahead, the U.N. effort was bogged down in politics for nearly two months. On October 15, the Office of the U.N. High Commissioner for Human Rights announced the selection of five commissioners for the now officially named International Commission of Inquiry on East Timor (ICIET): Sonia Picado of Costa Rica (Chair); Judith Sefi Attah of Nigeria; A.M. Ahmadi of India; Mari Kapi of Papua New Guinea; and Sabine Leutheusser-Schnarrenbeger of Germany.
Although plans were made to get a team to East Timor as soon as possible, the planners reportedly received orders from the Secretary-General's office to hold back. In part this appears to have been because of a desire to wait until the Indonesian People's Consultative Assembly (MPR) had ratified the results of the August 30 referendum in East Timor, and in part because Asian countries were unhappy with the way the Special Session of the CHR had been conducted.
In the meantime, authority over East Timor was formally transferred to the U.N. On October 19, the Indonesian MPR voted to ratify the results of the August 30 referendum. On October 25, the U.N. Security Council passed Resolution 1272 (1999), establishing UNTAET as an integrated, multidimensional peacekeeping operation fully responsible for the administration of East Timor during its transition to independence.
The first international investigators to arrive in East Timor were three U.N. special rapporteurs sent to East Timor in early November: Asma Jahangir, special rapporteur on extrajudicial summary or arbitrary executions; Nigel Rodley, special rapporteur on torture, and Radhika Coomaraswamy, special rapporteur on violence against women. Members of ICIET did not actually head for East Timor until after the U.N. Economic and Social Council endorsed the CHR resolution on November 15.
Throughout September and October, not a single U.N. investigator was on the ground in East Timor and during this period important forensic evidence was removed or deteriorated. In many cases, it literally was carried off by wild pigs and dogs. Interfet troops did seize some documentary evidence and conduct preliminary investigations, but Interfet's primary function was security. In many cases, Interfet simply cordoned off police stations, military posts, and other potentially important sources of documentary evidence. Some such sites were not again visited by investigators for several months, during which time documents were exposed to rain and heat.
When ICIET finally did get going, it had little time to work, but managed to cover a lot of ground, building on the work of the U.N. special rapporteurs, Interfet, and a variety of East Timorese and international organizations that had begun collecting testimonies. The team was able to examine extensive documentary evidence and over 100 witness statements despite being physically present in East Timor for only one week.
In its report to U.N. Secretary General Kofi Annan, made public on January 31, 2000, the ICIET team 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.
The Indonesian KPP-HAM team issued its own report, timed to coincide with the international report. The Indonesian effort was thorough and professional, and the KPP-HAM report, unlike its international counterpart, named names of suspected perpetrators.
The ICIET panel recommended, among other things, that an international tribunal be set up to prosecute those responsible. In his letter forwarding the report to the Security Council and General Assembly, Secretary-General Kofi Annan did not endorse the recommendation for a separate tribunal, stressing that full cooperation should be given to Indonesian efforts to investigate the crimes. He did emphasize, however, that UNTAET's capacity for conducting its own investigations should be strengthened.
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. Indonesia's behavior was all the more egregious because Indonesia had formally agreed to provide security for the vote. As ICIET 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).
II. DEVELOPMENTS IN INDONESIA
As noted above, the Indonesian investigators in the KPP-HAM investigation team performed far better than many had expected. The January 31, 2000 KPP-HAM report was a remarkable achievement and testament to the drive and dedication of those involved. The document analyzed ties between the militias and Indonesian army, examined more than a dozen specific atrocities, and highlighted evidence showing a pattern of complicity between militia and Indonesian civilian and military leaders. The report implicated General Wiranto, then supreme commander of the Indonesian armed forces, as "morally responsible" for the violence.
Within Indonesia, the KPP-HAM investigation was highly controversial, and team members were under critical scrutiny from the start by nationalist defenders of Indonesia's East Timor policies. After release of the report, team leaders were called before parliament (DPR) and berated for their alleged bias in failing to document abuses by pro-independence Timorese and by Australian soldiers serving with Interfet. Team leaders coolly responded that they had looked into all of the allegations but found that the overwhelming majority of cases were perpetrated by the pro-Indonesia side.
The most direct impact of the report came on February 13, when President Wahid asked Wiranto to step down from his cabinet post. The ouster of Wiranto, however, proved to be a climax of sorts. As the international spotlight on East Timor dimmed in ensuing months and the domestic focus shifted to the prosecution of former President Soeharto on corruption charges, the Indonesian effort lost momentum.
Responsibility for investigations shifted to the attorney general's office after the KPP-HAM team submitted its report on January 31. Progress on investigations since the shift has been painfully slow.
Some Indonesian commentators believe that Jakarta's investigations are strongly supported only by a handful of officials, which fortunately has included both the president and attorney general, and that these few politicians have maneuvered shrewdly to keep the East Timor prosecutions from being derailed altogether by forces within the military opposed to the prosecutions. Others believe that the attorney general could have acted much more quickly and forcefully than he did. Human Rights Watch is of course not privy to the current status of the Indonesian investigators' case files nor to how much evidence has been gathered on any particular case. The information that is publicly available, however, gives reason for concern.
The quality of the January 31 KPP-HAM report had served to give the Indonesian effort
more credibility than it otherwise might have had, but it also put pressure on the Indonesian attorney general's office to come up with indictments. To get those indictments, the attorney general needed UNTAET's help, both to obtain documentary evidence and to gain access to witnesses in East Timor; his office reportedly had almost no evidence that would stand up in court. UNTAET, for its part, recognized that those most responsible for the 1999 violence were all in Indonesia. If UNTAET was fully cooperative with the Indonesian process, not only might the interests of justice be better served, but the attorney general's office also would have no excuse for not proceeding with prosecutions.
Accordingly, on April 6 UNTAET and the Indonesian government signed a Memorandum of Understanding on Legal Exchange (MOU) to facilitate exchange of evidentiary materials and enable one country to request the other to question witnesses, make arrests, or "transfer" suspects as necessary. The attorney general was also able to obtain copies of Interfet investigation files directly from Australian military sources, with names of witnesses withheld.
Although the MOU provided a basis for exchange of information and guidelines for collaboration between the two jurisdictions, it has done little to resolve the critical issue of which jurisdiction would be responsible for prosecuting which suspects. The key provision, that "[w]hen reviewing a request for transfer [of a suspect], the Parties should be guided by the principle that individuals shall be generally held responsible in the jurisdiction where the crime at issue was committed" (MOU, section 9.4) was open to different interpretations. On the face of it, the language suggested that UNTAET would have jurisdiction over all suspects whose crimes had taken place on East Timorese soil. The Indonesians, however, have steadfastly maintained that East Timor was within Indonesian jurisdiction until the Indonesian MPR officially relinquished control on October 19, and thus can argue that all individuals believed responsible for criminal acts in East Timor in 1999 should be tried in Indonesia.
The MOU also expressly provided an out, which allows either side to refuse to cooperate if it has reason to question the credibility of prosecution efforts in the other jurisdiction: "Each Party shall have the right to refuse a request for such transfer if the carrying out of legal proceedings by authorities of the requesting Party would not be in the interest of justice." (MOU, section 9.3)
Prospects for future collaboration are unclear. While no formal request has yet been made by UNTAET, the likelihood that the Indonesian side will be able or prepared to transfer a suspect remains questionable given its failure over the past eight months to prevent organized attacks on UNHCR convoys or prevent incursions into East Timor (the incursions are discussed at greater length below). For its part, UNTAET to date has been guarded in its response to Indonesian requests, fearing both for witness safety and for the integrity of evidence given to the Indonesian team, which includes investigators from the army and police.
After receiving the KPP-HAM report, the Indonesian attorney general's first act in February was to appoint a team to review the report and suggest a strategy for investigations. The formation of the actual East Timor investigation team did not take place until two months later. On April 19, Attorney General Marzuki named a sixty-four-member investigation team, consisting of thirty-eight officials from his own office, ten from the military police, six from the national police, and ten from the home affairs ministry. Another fifteen-member team of experts was appointed to consult with and review the work of the investigation.
When the team was announced, the attorney general stated that the investigations would focus on five cases: the April 17, 1999 attack on pro-independence leader Manuel Carrascalao's house in Dili which left at least twelve, and probably many more, dead; the September 6 attack on the home of Dili Bishop Carlos Felipe Ximenes Belo; a massacre of civilians who had fled militia intimidation and taken refuge in a church in Liquica in April; a massacre in a church in Suai in September where at least twenty-six people died; and the shooting of Financial Times correspondent Sander Thoenes in the East Dili area of Becora on September 21.
From the beginning, the effectiveness of the team was limited by a range of factors, including inexperience of team members in dealing with crimes against humanity, the political resistance of some team members to the very idea of prosecuting military officials for the events in East Timor, the imperative within the attorney general's office of pursuing higher profile cases such as corruption scandals and the prosecution of Soeharto, and direct physical threats.
The presence of military and national police investigators on the team drew immediate criticism. One of the investigators, a military police colonel named Hendarji, was alleged previously to have obstructed investigations into the role of elite Kopassus troops in the "disappearances" of student activists in 1998.
There were also complaints that the attorney general's effort has been more show than substance. Members of the team of experts interviewed by Human Rights Watch in mid-August 2000 reported that they had been allowed no substantive input into the investigations and had no clear understanding of their functions and authority. As this report was being prepared, team members were being called on to review the legal basis for indictments prior to the attorney general's planned release of a list of suspects.
Although the attorney general, perceiving the weaknesses of his team, early on sought and received considerable international support and training, including from lawyers with experience in prosecuting crimes against humanity, confidence in the team was not enhanced by remarks made by some team members at training sessions. Witnesses present at one training session told Human Rights Watch that the resistance of some members of the team was palpable. One investigator suggested that there were two sides in East Timor, each had guns, and they were fighting each other, so he saw little point in an ambitious prosecution. Another investigator suggested that the team give equal attention to wild and entirely unsubstantiated allegations in the Indonesian press that Australian Interfet soldiers had committed atrocities against former militia members. At least one Indonesian human rights lawyer has recommended that the team be scrapped and individuals of proven integrity and competence be brought in from outside the attorney general's office to conduct the investigation.
On July 4, 2000, a bomb blast rocked the attorney general's office in Jakarta, damaging a section of the office but causing no injuries. The following day, two more live bombs were discovered. Although the perpetrators were not discovered and there is no evidence linking the bombs to the East Timor inquiry, the explosion and threats shaped the environment in which the attorney general's team was forced to work.
Despite the shortcomings and threats, the attorney general's East Timor team took a major step forward starting on May 1 when it began questioning twenty-one individuals, including members of Indonesia's military elite. Between May 1 and May 16, sixteen civilians and military and police personnel were questioned by the attorney general's team, including former Indonesian military commander General Wiranto, former army deputy chief of staff Lt.Gen. Johny Lumintang; former armed forces intelligence chief Zacky Anwar Makarim; former East Timor military commander Brig.Gen. Tono Suratman; Tono Suratman's immediate superior, former regional commander Maj.Gen. Adam Damiri; Brig.Gen. Tono's successor, Col. Noer Muis; and former East Timor police chief Brig.Gen. Timbul Silaen.
On May 15, the attorney general's office made its first request to UNTAET under the terms of the MOU, seeking to come to East Timor to interview witnesses and visit several sites where atrocities had taken place. The list of proposed questions accompanying the request was general in nature, suggesting that the investigation was still in its infancy. The request was followed, on June 8, by a meeting in Jakarta between UNTAET and representatives of the attorney general's office to discuss the logistics of the upcoming visit to East Timor. A seventeen-member team eventually arrived in Dili on July 19, most staying until July 28. The team interviewed roughly thirty witnesses with UNTAET investigators as intermediaries.
Some East Timorese say that they held back and some refused to be questioned because they fundamentally do not trust the Indonesians. Nothing in the MOU, moreover, suggests that witnesses can be compelled to travel to Indonesia to testify against their will. In addition to distrust of Indonesian prosecutors' intentions, potential witnesses are also afraid of reprisals. Indonesia has drafted a witness protection law, but the law has not yet been enacted.
On July 24, overlapping with the visit to East Timor, a separate group within the attorney general's team visited Kupang, West Timor to interview former East Timorese civil servants implicated in the original KPP-HAM report.
Sources familiar with the Indonesian investigations say that, although the team has made progress in developing cases against individual wrongdoers, it has done almost nothing to build strong cases against commanders and civilian leaders who set militias in action or failed to act to stop militias after the violence began.
The East Timor investigations are not the only or even the most high-profile investigations of past abuses currently underway in Indonesia. Investigative teams for at least four other major human rights cases have been formed since Soeharto fell in 1998. These include: (1) an independent commission that looked into military atrocities in Aceh since 1989; (2) a special commission on the 1984 Tanjung Priok massacre, in which troops in Jakarta opened fire on a Muslim crowd, killing scores of people; (3) a fact-finding team looking into the May 1998 riots and anti-Chinese violence and rape that directly preceded Soeharto's ouster; and (4) the most closely watched of all investigations at present, a joint military-civilian investigation into a raid on the party headquarters of Megawati Sukarnoputri's Indonesian Democracy Party (PDI) on July 27, 1996. Some of the same generals questioned in connection with East Timor are also being questioned for their role in the 1996 raid.
The case with most direct relevance to the East Timor investigation, however, is a counterfeiting case. In a Jakarta court, defendant Ismail Putra, a recently retired army veteran who had long served in an army combat intelligence unit, confessed to participating in counterfeiting 19.2 billion rupiah (roughly US$1,500,000) but said he did so at the direction of Indonesian army chief of staff Gen. Tyasno Sudarto to assist pro-Indonesian militias in East Timor. Putra said that he had been approached and asked to obtain paper on which to print the counterfeit bills, but had initially refused. He testified that he was then brought to meet Gen. Tyasno at the Central Hotel in Jakarta. Gen. Tyasno, whom Putra said assured him of his identity by relating details of Putra's service record known only to army intelligence, told Putra that the counterfeit money was to assist the pro-integration side in East Timor to buy weapons to oppose pro-independence militias and that the bills would not circulate outside East Timor. Tyasno further stated that Putra's assistance was for the sake of national interest and that, without the assistance, the pro-Indonesia side could lose the August ballot.
This account squares with reports by East Timorese rights groups in 1999 of a rash of new counterfeit money in circulation and has provided new evidence directly linking Indonesian military headquarters to covert activity in support of pro-Indonesia militias in the 1999 East Timor campaign.
Militia terror continues
The obstacles to justice in Indonesia go far beyond the weaknesses with Jakarta's East Timor investigation effort detailed above. Another critical problem has been the military, which has utterly failed in its responsibility to gain control of militias in West Timor, much less apprehend militia leaders implicated in the 1999 violence.
For the last two months, the same militias responsible for much of the devastation of East Timor in September 1999 have been increasingly terrorizing refugee camps and international humanitarian workers in West Timor and making raids across the border. Had there been any political will in the Indonesian government to do so, the militia leaders could have been stopped and disarmed months ago. If the government is not able--or willing--to arrest even known thugs for causing violence on Indonesian soil, it is hard to believe in their will to track down and arrest those responsible for crimes in their former colony.
The situation has only grown worse. Since mid-July, dozens, perhaps hundreds, of militia members operating from bases in West Timor have crossed into East Timor in groups of ten to fifteen men. A New Zealand soldier with the U.N. peacekeeping force was shot and killed on July 24, a Nepalese soldier on August 11. The incursions have terrorized the civilian population in the affected districts of East Timor. Most of the incursions have been into the East Timorese border districts of Covalima and Bobonaro, but militia members have reached the interior provinces of Ermera and Ainaro as well.
Inadequate Legal Framework in Indonesia
Lack of consistent political will on the part of the Indonesian leadership and the still substantial political power of the Indonesian military have also impeded legal reform efforts. A year after Indonesia promised it would take the lead in prosecuting those responsible for the terror and destruction in East Timor, it still lacks the legal instruments and institutions necessary for credible prosecutions.
As already noted, the need to establish independent courts to try alleged perpetrators of gross violations of human rights, under consideration since Habibie's administration in 1999, was given added impetus from international attention to the East Timor crisis. The call for creation of human rights courts was driven both by a perception that existing courts and judges were dysfunctional and corrupt, and by a lack of explicit provisions within the Indonesian criminal code covering human rights crimes.
Within two weeks of the close of the CHR's special session in Geneva on September 27, 1999, the Indonesian parliament had passed a new human rights law, Law Number 39/1999, and President Habibie had issued the decree mentioned above, Government Regulation [Issued] in Lieu of Legislation No. 1/1999 (Habibie Decree), authorizing the establishment of human rights courts.
The government of Abdurrahman Wahid, however, considered the Habibie Decree inadequate and, seeking a more secure legal basis for prosecuting gross human rights violations such as the atrocities in East Timor, planned to introduce more comprehensive legislation. As a formality, the Habibie Decree was turned into a draft law and submitted to Indonesia's parliament, the People's Representative Assembly (DPR). On the advice of the Wahid government, the parliament rejected the bill in March 2000. The idea was to replace it shortly thereafter with more comprehensive legislation.
New draft legislation for human rights courts, prepared by a special committee of experts convened by Law and Legislation Minister Yuzril Mahendra, was submitted to parliament in May 2000. The new draft, however, has also been mired in controversy. In its current form, the law would set up a special chamber within the Indonesian court system with exclusive jurisdiction over all cases involving gross violations of human rights. Only future abuses would come directly before the courts, however: past abuses would require the president, on the advice of parliament, to issue a decree creating ad hoc human rights tribunals on a case-by-case basis. Shortcomings in the current draft include the ad hoc nature of the tribunals for past cases, the politicization of such cases through the provision that such tribunals can be set up only by action of the president and parliament, poorly drafted definitions of crimes, lack of specific provisions on "command responsibility" and "due obedience to superior orders" defenses, and strict time limits that could unnecessarily hamper prosecution efforts (the last provisions, ironically, inserted into the draft bill as a result of pressure by civil society groups distrustful of the government).
In the meantime, the Habibie Decree continues to be the legal basis cited by the attorney general for the ongoing East Timor investigations. Many legal scholars believe, however, that, once the DPR considered the Decree but refused to enact it into law, it ceased to have validity. The source of the attorney general's power to prosecute has thus remained unclear.
Whether due to lack of experience or a desire to keep the East Timor investigation in the headlines, the attorney general has regularly announced deadlines for completing investigations, naming suspects, and so on, which his office has then failed to meet. In part this appears to have been driven by the attorney general's perception that the sole legal basis for setting up a tribunal outside the existing, discredited court system was the Habibie Decree. The Habibie Decree sets a three-month deadline, extendable for another three months, for the attorney general to issue indictments following submission of the results of preliminary investigations by the National Human Rights Commission. Because the KPP-HAM report on East Timor was submitted on January 31, this would have required that the attorney general complete indictments by July 31 at the latest. Other members of the attorney general's East Timor team, however, have suggested that the team had three months from the date when formation of the team was announced in April. It has never been clear what was the legally binding deadline and what was merely a self-imposed time frame. If the Habibie Decree continues to be the basis for the East Timor prosecutions, protracted litigation is likely on whether there is a proper basis to proceed. In the meantime, the draft human rights court bill likely will be taken up at the next session of the Indonesian parliament beginning in September 2000.
The Constitutional Amendment
If the confusion over the Habibie Decree and terms of the draft human rights court bill were not bad enough, an even more significant legal hurdle suddenly emerged at the very end of the People's Consultative Assembly (MPR) session in mid-August 2000. Although the MPR had long intended to amend the Indonesian constitution to include a bill of rights, the relevant amendment, No. 28I(1) was changed at the last minute to provide a fundamental "right not to be prosecuted based on a law applied retroactively" as among those rights which cannot be limited "under any circumstances whatsoever."
While a prohibition on retroactive punishment is a standard element in criminal law worldwide, the provision newly etched in the Indonesian constitution makes no provision for the prosecution of international crimes (offenses that, while not on the Indonesian law books at the time that they were committed, nevertheless were recognized as binding on all states under international law at the time). As a result, the amendment likely will prevent prosecutors from pursuing Indonesian military commanders and civilian leaders for offenses such as crimes against humanity, and limit them to ordinary criminal offenses already included in the Indonesian Criminal Code such as murder, rape, and arson.
A ban on retroactive punishments is unobjectionable so long as special provision is made for prosecution of crimes under international law. The relevant provision of the International Covenant on Civil and Political Rights states unambiguously that prosecutions for crimes recognized under international law are not affected by the ban on retroactive use of laws:
"Article 15: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. ... 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."
Jakob Tobing, head of the MPR commission responsible for drafting the constitutional amendment, has stated that the drafters in no way intended to prohibit trials of officials for past gross human rights abuses, and that the MPR's official written explanation accompanying the amendment makes that point clear.
Under Indonesian law, as in other legal systems, however, a legislative explanation is subordinate to the text of the constitution itself. And the relevant text in the amendment, quoted above, is phrased in absolute terms. Indonesian press reports say that top serving and retired officers, backed by Golkar, the party of Soeharto, put enormous pressure on parliamentarians to adopt the amendment. Defense lawyers have already said they intend to invoke it to prevent prosecutions. At a minimum, passage of the amendment opens the door to potentially lengthy court battles; at worst, the amendment may grant de facto immunity to generals and other high ranking officials for some serious, internationally recognized offenses committed in the past.
Truth and Reconciliation Commission
Apart from the morass created by the uncertain legal framework, there is also a danger that the government will create a "Truth and Reconciliation Commission" with amnesty provisions that scuttle prosecution efforts. The Indonesian government is currently considering draft legislation that for the most part represents a serious, thoughtful effort at accountability for past crimes going back to 1965. Although still in early stages, the current draft bill, modeled loosely on South Africa's Truth and Reconciliation Commission, provides an amnesty for all politically motivated crimes, however severe, in exchange for truth-telling.
Indonesian supporters of building an amnesty provision into the proposed truth commission point to the continuing political influence of hardline generals. They believe that there are still many officers who wish to retain the existing political and economic power of the military, fear the negative impact that human rights trials could have, and may be willing to provoke unrest throughout the country in order to stop civilian authorities from carrying through. Placating such forces, they believe, is necessary to prevent violence and possible national disintegration.
The bill is only in its first draft, but, as currently structured, could produce disastrous results. First, there is a growing international consensus against the granting of impunity for gross human rights violations. Second, the very fact that there has been no clear break with the past in Indonesia and that the old guard remains powerful are important reasons not to include an amnesty provision in the bill. The proposed commission could usefully focus instead on eliciting and compiling testimony from victims and establishing the truth of past events.
Perhaps most critically, Indonesia's judiciary is even weaker than South Africa's was at the time apartheid was dissolved and the South African Truth and Reconciliation Commission was established. There is a real danger that, without a genuine threat of prosecution, perpetrators will have no incentive to come forward and present testimony to the truth commission, with the sole exception of those individuals who are about to be convicted. The end result could well be that the commission undercuts the success of prosecutions without generating much truth. Finally, whatever compromises the Indonesian polity might be willing to make in the interests of national reconciliation, as a matter of principle justice for East Timor should not be held hostage to Indonesian domestic concerns.
A further threat to successful prosecutions is the possibility that military and civilian leaders implicated in planning the systematic attacks in East Timor will seek and obtain presidential pardons for their crimes. President Wahid has already indicated that General Wiranto would be pardoned if he were to be brought to trial and convicted; if and when prosecutions appear more likely, other powerful generals can be expected to seek similar treatment.
III. DEVELOPMENTS IN U.N.-ADMINISTERED EAST TIMOR
In U.N.-administered East Timor as in Indonesia, investigations were slow to get started. UNTAET faced immense logistical difficulties, but the delay was also due to a failure of coordination among branches of UNTAET and between UNTAET and other entities involved in investigations, including Interfet and East Timorese NGOs. By early August 2000, however, UNTAET had managed to put the fundamentals in place to begin serious investigations of the events of 1999 and prepare eventual prosecutions. Even so, it was only just beginning the very difficult task of processing and evaluating a huge quantity of existing information while simultaneously seeking out new witnesses and documentary evidence.
It is critical that UNTAET resources be put to good use. The success of the UNTAET investigations is necessary not only for ensuring that suspects present on East Timorese soil, whom UNTAET can prosecute directly, are brought to justice expeditiously, but also for those in West Timor and Indonesia. Even if such perpetrators are never brought to East Timor, well-developed dossiers will be critical to the success of long-term justice efforts. Should Indonesian prosecutions fail, the information could be transferred to an international tribunal or could be used as the basis for prosecutions outside of Indonesia and East Timor on the Pinochet model.
UNTAET had to create basic institutions from scratch in a situation in which most senior civil servants had been Indonesian and public buildings, almost without exception, had been gutted by fire. The first East Timorese judges, prosecutors, and public defenders were installed on January 7, 2000, but the court building, destroyed by the militias, was not ready until March, and the first criminal trial was not held until August. The police academy started training its first East Timorese recruits in late March. At one point, UNTAET's own police stopped making any arrests of suspected criminals, including those involved in the 1999 violence, because it had no place to put them; the one detention center in the entire country, a former Ministry of Tourism building, had long since exceeded capacity, and the main prison in the capital, Dili, was only rehabilitated in May. Detention facilities have since been expanded, but the problem is indicative of the constraints under which UNTAET has had to operate.
As in many other peacekeeping missions, UNTAET's civilian police (civpol) have been a major problem. Recruitment was agonizingly slow, and the overall quality of those recruited has been low. Most civpols have been recruited for three-month tours of duty, hardly enough time to understand the place or the people. Almost none spoke a language intelligible to the East Timorese, and interpreters were scarce, leading to a reliance on informal security forces set up by the CNRT whose activities civpol had almost no capacity to monitor or control.
The process of investigating crimes against humanity in East Timor was slowed by some of the same problems of lack of institutional infrastructure, untrained civpol, and bureaucratic divisions within UNTAET. As early as December 1999, UNTAET decided that an international
panel of the Dili district court would be set up to investigate international crimes, such as crimes against humanity, and all serious offenses such as murder and rape that occurred from January 1, 1999 through October 25, 1999. That decision was codified in UNTAET Regulation No.11 of March 6, 2000 on the organization of the courts in East Timor. The statute setting forth the actual wording of the crimes to be covered by the international panel (largely taken verbatim from
the Rome Statute setting up the International Criminal Court) was only adopted on June 6, the same day a prosecution service was set up.
None of the civpol who were legally empowered to investigate the 1999 crimes, however, received any training in investigating crimes against humanity until late June. Most civpol treated each case as a routine homicide investigation, with no attention to the role of the Indonesian state or to the links among the different crimes. The short tours of duty meant that every new investigator coming in tended to start the questioning of witnesses from scratch. There was no serious effort to reach out to East Timorese NGOs for help in identifying potential witnesses.
From November 1999 to late March 2000, civpol alone had full authority for investigations, although the UNTAET human rights unit took charge of forensics work and was able to get the Dili morgue up and running by the end of January. Civpol, like other sectors, was inundated. Its investigation unit was responsible for investigation not just for the 1999 violence but for all ongoing crimes as well, and as law and order concerns in East Timor increased, attention to the 1999 crimes was often diverted. On March 22, a war crimes/human rights investigations unit was set up within civpol to be headed by an investigator from the human rights unit. The change was only on paper; the new unit had no investigators other than civpol. In early June, when the prosecution service was set up, it became clear that sooner or later, human rights investigations would have to fall under the authority of UNTAET's prosecutor general, reflecting East Timor's civil law system. The prosecution service, however, was under UNTAET's judicial affairs department, separate both from civpol and from the Office of Human Rights Affairs.
On July 20, 2000 UNTAET formally shifted from its original (and dysfunctional) peacekeeping structure to that of a coalition government with the CNRT. Among the eight "ministries" created was a Ministry of Judicial Affairs. The Office of Human Rights Affairs was left out of the
Cabinet although it remained an advisory unit to the office of the special representative of the secretary-general. In August, however, the investigation unit was formally moved to the new ministry, under the prosecutor general.
In the meantime, six different agencies concerned with accountability for the 1999 crimes-- judicial affairs, human rights, political affairs, legal affairs, civpol, and the East Timorese courts -- went ahead with their efforts, sometimes tripping over each other's toes in the process. East Timorese victims and witnesses to these crimes grew resentful over repeated questioning without any obvious progress in bringing the perpetrators to justice. In addition, many local and international NGOs interviewed victims and witnesses, but there was no channel for the information to be used by prosecutors.
If investigations into killings were slow, they were close to nonexistent in rape cases. Serious investigations into rapes as crimes against humanity only began in July 2000; before then only two rape cases from 1999 were under active investigation. One factor was the lack of women investigators. Less than 4 percent of the civpol force overall was female, and of the handful of women investigators, only one had special training in investigating sexual crimes.
A coordinated effort to collect and compile evidence of crimes against humanity only began in earnest in June. Ironically, the effort was prompted in part by the need to have a team in place to respond to Indonesian requests for information. Also in June, UNTAET brought in Lt.Col. Michael Keegan, a U.S. Marine Corps attorney who at the time was serving as a prosecutor with the ad hoc international criminal tribunal for the Former Yugoslavia. Keegan spent a month in East Timor training investigators about how to go about building such cases. Keegan's brief tenure was followed in early August by the appointment and arrival in East Timor of Mohamed Claude Othman, a Tanzanian jurist, as General Prosecutor. Othman had been Chief Prosecutor at the ad hoc international criminal tribunal for Rwanda. By mid-August, the Serious Crimes Unit had twenty-three full-time investigators, though only six with any prosecutorial experience. Most originally had come to East Timor as Civpol.
As of this writing, all institutional fundamentals for prosecutions were in place. On the legal institutions front, progress was slow but steady. As indicated above, by June 2000 UNTAET had set up courts and a prosecution service, and had enacted resolutions specifically providing for prosecution of the 1999 crimes before special judicial panels and incorporating detailed definitions of the relevant offences from the Rome Statute of the International Criminal Court.
The UNTAET effort is still only just beginning. As Othman told Human Rights Watch on August 14: "Strong evidentiary leads are there, but we need to move the focus of investigations away from specific incidents; we need to go back to events in April  to see the planning." Prosecutors now foresee being able to build cases against responsible individuals, including not only members of East Timorese militias currently in detention but also Indonesian military commanders and civilian leaders, potentially those based in command centers in Bali and Jakarta, as well as those who were present in East Timor, by the end of 2000.
Although prospects have improved, significant obstacles remain. Logistical and budgetary constraints remain a significant problem. A UNTAET prosecutor interviewed by Human Rights Watch on August 11, 2000 reported that phones were out of service and he had been unable to obtain a fax machine despite repeated requests. He said he was routinely unable to get authorization for a car to conduct interviews in towns a few hours outside Dili and lacked readily available equipment that could make investigations far more efficient, such as a small battery operated printer enabling an investigator to can print out a witness deposition and have it signed on the spot.
Another impediment is growing frustration among East Timorese. The U.N.'s continued willingness to defer to the Indonesian prosecutorial effort has led some East Timorese to feel betrayed and has led to a lack of trust in UNTAET. This is particularly true among victims of the violence. East Timorese interviewed by Human Rights Watch in August 2000 felt that UNTAET had largely ignored victims and was doing little to keep them abreast of developments on the justice front. Such resentment should be addressed immediately, both for the sake of the victims and for the sake of the broader justice effort. If the current dual system continues, moreover, with prosecutions scheduled in both Indonesia and East Timor, some of the victims will be called on to testify in Indonesia. Such individuals will need information to enable them freely to choose where they should testify.
A final obstacle is the possibility that the East Timorese leadership, seeking incentives to get people back from West Timor, will offer amnesties to militia leaders currently in West Timor in exchange for the militia leaders' agreement to return to East Timor and bring with them hundreds or thousands of other East Timorese civilians they control (or claim to control). Although East Timorese leaders such as Xanana Gusmao and Jose Ramos-Horta have insisted that justice must go hand in hand with reconciliation, both have also commented that many of the militia leaders were victims of Indonesian brutality long before they became perpetrators of abuses against East Timorese, and have suggested that such individuals might deserve leniency on that account. Such a decision would be highly unpopular among victims and could well lead to new outbreaks of revenge attacks.
In an effort to lure people back, East Timorese leaders and UNTAET officials have already arranged "look and see" visits to East Timor for some militia leaders. So far, however, there have been no reported offers of amnesty; an individual who attended one such visit told Human Rights Watch that the issue simply was not discussed.
The East Timorese leadership is also currently contemplating how best to structure its own truth and reconciliation process. In mid-May, Xanana Gusmao, announced the establishment of a National Reception and Reconciliation Commission (Comissao de Acolhimento e Reconciliacao Nacional). The commission was initially envisaged as a mechanism for bringing back militia members and their followers or hostages from West Timor, by promising them a fair hearing and judicial process in exchange for full confessions of their actions in 1999. The structure and functions of the commission were further developed in a workshop in Dili on June 19-20. As of August, a coordinating committee led by UNTAET was looking at a plan that would allow perpetrators of lesser offenses, such as arson or looting, to make a full confession of their deeds before the commission. Traditional justice mechanisms at the local level would then assign the perpetrator to some form of community service, but the deed, the confession, and the "sentence" would be registered with the formal court system.
Appendix: MINIMUM BENCHMARKS
Human Rights Watch considers the following to be the minimum acceptable standards for a tribunal with responsibility for prosecuting international crimes such as those that took place in East Timor last year:
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.
1. The Conselho Nacional da Resistencia Timorense or National Council of East Timorese Resistance (CNRT) was created in 1998 as the umbrella organization uniting the East Timorese resistance with Xanana Gusmao as president.
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