The Honorable José Alexandre Gusmão
Democratic Republic of East Timor
Dili, East Timor
Dear President Gusmão,
We are writing concerning the draft amnesty law recently presented to the National Parliament for debate (Law No. 5/2002). For more than a decade, Human Rights Watch reported on human rights abuses in Indonesia-occupied East Timor and we continue to follow developments in newly independent East Timor. We are thus aware of the important considerations that led to the proposed amnesty law, including promoting national reconciliation and encouraging the return of refugees. We are pleased to see that the draft law does not confer a blanket amnesty.
We are concerned, however, with a number of specific features of the proposed law, and wish to offer a number of suggestions based on our experience working on similar issues in other countries.
International experience has demonstrated that, even where amnesties are considered necessary after a period of extreme violence, it is critical that the most culpable individuals -- those responsible for the most serious crimes -- are prosecuted and imprisoned. An amnesty that is poorly designed and carried out can undermine genuine reconciliation efforts, weaken the rule of law, and imperil important values, including values such as tolerance, solidarity, and compassion mentioned in the preamble to East Timor's draft amnesty law.
We wish to raise three concerns about the design of the proposed amnesty, as reflected in the draft law: (1) the provisions defining who is eligible for amnesty are broad and confusing; (2) the law appears to treat members of the East Timorese resistance more leniently than it does pro-Indonesia East Timorese, undermining the principle of equal protection of the law; and (3) the law does not address how decisions will be made as to who is eligible for amnesties and who is not, and could lead to violations of due process rights.
Confusing Eligibility Criteria
The provisions of the draft amnesty law defining eligibility lack specificity. Article 1 extends amnesty to property crimes committed before May 20, 2002 that "[did] not involve violence or threats" ("que nao tinham envolvido violencia ou ameaca"). Article 2 grants amnesty to all crimes committed by Timorese members of pro-integration militias through September 30, 1999, except "crimes of violence and of blood" ("crimes violentos e de sangue"). While the decision to make perpetrators of violent crimes ineligible for amnesty is consistent with international standards, key terms such as "violence" and "crimes of violence" are nowhere defined in the draft law.
It is not clear, for example, whether individuals in positions of authority whose subordinates carried out acts of violence but who themselves did not directly engage in violence would be covered by Article 1 or Article 2. It is similarly unclear whether the burning of villages would qualify as a nonviolent property crime covered by the Article 1 amnesty or whether, instead, such acts would be deemed to have "involved violence" or to have carried an implicit threat to the displaced inhabitants of the affected villages. It is also unclear whether pro-integration militia members who helped round up and expel civilians into Indonesian West Timor in September 1999 using physical force where necessary to ensure compliance but generally not physically harming the civilians, would be eligible for amnesty under Article 2. Nor is it clear whether deprivation of liberty constitutes violence.
Because the law lacks specificity, one can expect, at best, long court battles in the future over which crimes qualify for amnesty and which do not. At worst, perpetrators of serious crimes may go unpunished.
The amnesty for members of the East Timorese resistance in Article 3 appears much broader than the amnesty available to pro-integration East Timorese in Article 2. For example, the Article 3 amnesty would appear to extend to single acts of rape or even non-political murder, such as the killing of a fellow resistance fighter after a personal dispute (a single rape or simple murder committed outside the context of an armed conflict is unlikely to constitute a "crime of war, of genocide or against humanity"). Article 2, by contrast, makes anyone guilty of a "crime of violence and of blood" ineligible for amnesty, and would not protect pro-integration militia members who engaged in precisely the same acts.
The fact that the draft law has different rules for resistance fighters and members of pro-integration militias is contrary to the principle of equal protection that underpins the rule of law. We recommend that the same amnesty rules apply to all persons in East Timor.
Lack of Due Process and Transparency
The draft law is entirely silent on how decisions will be made as to who is eligible for an amnesty and who is not. Many important issues - for example, whether a particular individual engaged in violent actions, joined a pro-integration militia willingly or was forced to do so, and so on - will undoubtedly be difficult to resolve and will be hotly contested. And there likely will be thousands of such cases. The fact that no decision mechanism is specified means, once again, that one can expect lengthy delays as parties contest amnesty awards or go to the courts to appeal decisions not to grant an amnesty. At worst, the failure to specify a decision mechanism could violate the due process rights of accused individuals.
The legitimacy of the entire amnesty process will be damaged if decisions are not fair and seen to be so by the families of both victims and the accused. We believe that the amnesty law should include detailed provisions on how amnesty decisions will be made, according to what criteria, and by whom.
Finally, we are concerned with how the draft amnesty law would affect the newly established Commission for Reception, Truth and Reconciliation. The broad nature of the amnesties and pardons provided for in the law could undermine the Commission's work by removing incentives for individuals to provide information or participate in community rehabilitation efforts. Furthermore, if amnesties or pardons are given prior to actions by the courts or the Commission, the truth of many serious crimes may never be discovered, and the perpetrators never held responsible.
Human Rights Watch recognizes that there are times that amnesties may be considered necessary for political reasons, such as to help end a conflict, or in the case of East Timor, to encourage the return of refugees and displaced persons. But if not carefully designed and carried out, amnesties can both undermine genuine reconciliation efforts and weaken the rule of law. We urge you to continue to solicit the input and views of East Timorese citizens, NGOs and civil society institutions as the process of considering the law goes forward.
U.N. Secretary-General Kofi Annan stated just prior to East Timor's independence that "true security requires that East Timor balance effectively the twin demands of justice and reconciliation. This is an area where the international community must continue to support East Timorese efforts." As the government of East Timor joins the U.N. General Assembly and the community of nations, it has already stated its intention to enforce and uphold internationally-agreed upon standards of human rights, law, and justice.
This is an historic opportunity. By amending the proposed amnesty law to make it consistent with human rights standards, East Timor's leaders and representatives can provide a strong, positive signal of their determination to fully live up to those international commitments.
Acting Executive Director
cc: The Honorable Francisco Gutteres (Lu Olu), President of the National Parliament
The Honorable Mari Alkatiri, Prime Minister