On September 14, the United Nations Security Council condemned the violence perpetrated in East Timor since the August 30, 1999 referendum and demanded "that those responsible for such acts be brought to justice." This briefing paper examines some of the issues surrounding such accountability. Those guilty of human rights abuses in East Timor could be brought to justice before a new ad hoc international tribunal, before the courts of Indonesia, or before the courts of other countries. The first step, however, will be solid documentation of the human rights crimes that have been committed. The United Nations High Commissioner for Human Rights Mary Robinson has called for the establishment of an international commission of inquiry. Human Rights Watch endorses this call. Only such a commission would have the resources and the mandate to carry out the wide-ranging investigation that will be required to bring the guilty parties to justice.
Q. Who could establish a commission of inquiry?
A. A commission of inquiry could be established by the Security Council, the Commission on Human Rights, the U.N. Secretary-General or the High Commissioner for Human Rights. Following the genocides in the former Yugoslavia and Rwanda, the Security Council established commissions of inquiry which ultimately led to the creation of ad hoc criminal tribunals. A Security Council mandate, under chapter VII of the United Nations Charter, would have the most force as member states could be required to cooperate with its work. The Commission on Human Rights, which may be holding a special session on East Timor, could also establish such a commission. The Secretary-General has the authority to appoint an inquiry commission as well. Finally, the High Commissioner on Human Rights has also offered to take the initiative in launching such an international commission.
Q. Where could those responsible be brought to justice?
A. The strongest option would be the creation by the Security Council of an ad hoc international tribunal created by the Security Council, similar to those for the former Yugoslavia and Rwanda. Indonesia, of course, also has a responsibility to bring perpetrators of grave abuses to justice before its own courts. Given its denials of responsiblity thus far and the extent of involvement in the terror by senior army officers, it is unlikely that Indonesia will make any serious move toward prosecuting these crimes in the near future. Finally, those accused of acts such as torture and crimes against humanity could be brought before the courts of other countries based on the universality of jurisdiction, as in the case of former Chilean dictator Augusto Pinochet.
Q. The Secretary-General said that the violence in East Timor "could amount ... to crimes against humanity." What are crimes against humanity?
A. Crimes against humanity are widespread or systematic crimes against a civilian population, in war or peace. These crimes include, among other things: murder, extermination, deportation, forced expulsion, imprisonment, torture, rape, and deliberate denial of access to food.
Q. What about war crimes?
A. What happened in East Timor between August 30, 1999 and the middle of September was not a war- there were not two sides. It appears instead to have been a deliberate campaign to destroy the territory, take revenge on pro-independence supporters, and force hundreds of thousands of people from their homes.
Q. If militias and local troops committed much of the violence, how high up the army chain of command should accountability for these crimes extend?
A. Any evidence suggesting a deliberate policy by army officers to organize, arm, equip, train, or otherwise assist the militias in their actions against pro-independence East Timorese would make those officers complicit in abuse. The abundant evidence of a deliberate army policy not to halt militia violence and of refusal of the Indonesian police to arrest militia members responsible for attacks also indicates complicity. Accountability for crimes against humanity could conceivably go all the way up to the commander of the Indonesian armed forces. It is worth noting that before the Indonesian government agreed to a multinational force, U.N. Secretary-General Kofi Annan suggested that Indonesian officials might also be considered complicit in crimes against humanity if they failed to allow a multinational force in to stop the violence, since national authorities had failed to do so and the multinational force was ready and willing to go.
Q. What is the timetable for getting inquiries and prosecutions underway?
A. The priority of the United Nations now is rightly on getting the multinational force into East Timor as quickly as possible, not only to help restore order but to provide security for humanitarian relief efforts. When the multinational force is in place, it will be easier for local and international human rights monitors to verify reports of atrocities and get some idea of the scale of crimes committed. The United Nations could then move quickly to establish an investigative commission.
Q. What kind of international accountability can there be for crimes committed by militias in West Timor?
A. We believe that if the same militias who may be responsible for crimes against humanity are committing crimes against East Timorese independence supporters in West Timor, their actions in West Timor should be included within the purview of any commission of inquiry set up by the United Nations.
Q. Will this really mean justice for the people of East Timor? Look how long it has taken to get any convictions in Bosnia or Rwanda, and how few people have actually been prosecuted.
A. It is probably true that the current Indonesian government will be reluctant to assist international efforts in the investigation and prosecution of Indonesian army officers and key militia leaders. If they are not in East Timor, the U.N.-mandated multinational force will have no authority to arrest them. But if enough evidence is compiled to clearly identify individual responsibility and name names, these men could still be indicted by an international tribunal. There is a possibility that a future Indonesian government, with more civilian authority, would have an interest in assisting the accountability effort and seeing justice done. In that case, it might be willing to arrest the men and turn them over to the tribunal. In any case, an international indictment carries a major stigma; anyone named as being complicit in crimes against humanity will become an international pariah. Even if militia leaders and their army backers seek safety in West Timor or in other parts of Indonesia, international pressure can still be exerted by governments around the world. It should be a condition of resuming arms sales and military-to-military links by Indonesia's major donors that prosecutions of those responsible for the death and destruction in East Timor are under way.
Q. If a commission of inquiry is established, what time period should it cover?
A. Massive human rights violations have taken place in East Timor since the Indonesian invasion in December 1975. But a commission of inquiry with a mandate to investigate the past twenty-four years might never get of the ground for political and practical reasons. We therefore believe its work should be limited to the period from January 27, 1999, the date that President Habibie announced that he would give East Timorese the option of declaring independence from Indonesia, to September 30, 1999.