Transitional Justice in the Asia-Pacific (24 page)

Since the 1999 referendum for self-determination brought the repressive twenty-four-year Indonesian occupation of East Timor to an end, multiple transitional justice mechanisms have been established to address the violence of the past. These have included two prosecutorial mechanisms:
a serious crimes investigations and prosecutions process (Serious Crimes Process) based in East Timor and a Jakarta-based Ad Hoc human rights court set up by the Indonesian government; and two truth and reconciliation commissions: a Commission for Reception, Truth and Reconciliation (CAVR) established by the
United Nations Transitional Administration in East Timor (UNTAET), and a bilateral East Timorese and Indonesian government-initiated Truth and Friendship Commission (CTF). Despite these efforts to ‘deal with the past’, no member of the Indonesian military has yet been tried for 1999-related violence, and the East Timorese leadership has progressively promoted a narrative of forgiveness, forgetting and ‘moving on’ from the past.

After providing a brief background to the conflict during the Indonesian occupation, this chapter traces the competing imperatives that have shaped the transitional justice agenda since the 1999 referendum and have underpinned the East Timorese leadership's increasingly anti-prosecutorial stance. In particular, I acknowledge that, in a context in which powerful members of the UN Security Council have increasingly
prioritised the maintenance of relations with Indonesia over the establishment of an international criminal tribunal to prosecute senior members of its military, it is not surprising that the East Timorese leadership has implored its population to forgive and forget. In addition
, I suggest that the leadership's forward-looking reconciliatory narrative has served
internal
nation-building purposes, and reflects preoccupations with building national unity and establishing political legitimacy during a fragile and formative nation-building era. Anxieties about these issues can be seen in the attempts by some East Timorese leaders to orient the justice debate towards social justice rather than retributive justice and the ongoing parliamentary discussions about amnesties and pardons for convicted East Timorese perpetrators of serious crimes.

Despite the UN's broken promises to hold those ‘most responsible’ to account for the violence of 1999, and the East Timorese leadership's entreaty to the population to move on, this chapter argues that it is too simplistic to characterise the transitional justice process as representing a triumph of ‘pragmatism’ over ‘principle’. Specifically, it is apparent that new and unforseen possibilities are emerging from the CAVR and CTF reports and the activities of NGOs and local victims’ groups, which may help to shift the terrain on which justice struggles are enacted. These developments indicate that transitional justice in East Timor is perhaps best described as an open-ended, political conversation without a pre-determined end point, rather than a project confined to a specific ‘transitional’ period.

East Timor, a Portuguese colony for roughly three centuries, underwent dramatic changes in the mid-1970s. Following the overthrow of the Caetano regime in Portugal, in 1974, political parties in East Timor rapidly emerged, including the radical pro-independence
party FRETILIN (
Frente Revolucionária de Timor-Leste Independente
/Revolutionary Front for an independent East Timor), which had high hopes of a smooth
decolonisation process. These hopes, however, were very quickly crushed due to Indonesia's expansionist ambitions. Indonesia proffered support to a small party called Apodeti, which advocated integration with Indonesia, and encouraged another party
, UDT (
União Democrática Timorense
/Timorese Democratic Union), which favoured eventual independence but with continued ties to Portugal, to fight with FRETILIN. This led to a brief, but brutal, conflict between FRETILIN and UDT, sometimes referred to as the internal political conflict or civil war, during which an estimated 1,500 to 3,000 people lost their lives.
¹
After winning a military victory, FRETILIN declared East Timor's independence on 28 November 1975. Nine days later, however, the new nation was invaded and occupied by Indonesian forces, an act which was immediately condemned by the UN Security Council and General Assembly.
²
In 1976, East Timor was incorporated into Indonesia as its twenty-seventh province. A tenacious resistance struggle was then waged by East Timorese opponents of the occupation over the next twenty-four years.

An estimated 100,000 to 200,000 people are believed to have lost their lives during the occupation, out of a population of less than 800,000, due to a combination of direct military assaults, illness and starvation.
³
The East Timorese population also endured other forms of violence, including
arbitrary imprisonment, torture, assault and rape, repeated displacement, deprivation of basic needs including food and healthcare, and ongoing restrictions on freedom of movement.
⁴
Within the coercive context of the occupation a great deal of violence was also committed by East Timorese people against one another. Much of this was a consequence of Indonesia's counterinsurgency strategy, a key aspect of which involved the use of East Timorese as spies and informants and their recruitment into combat battalions, paramilitary groups and civil defence forces. This strategy created a highly militarised society which undermined social bonds and cultivated fear and distrust within local communities.
⁵
East Timorese political parties and resistance groups were also responsible for acts of violence against the population, not only during the internal political conflict of 1974 to 1975 but throughout the occupation. In the late 1970s, for instance, under the strain of Indonesian military onslaught, FRETILIN arrested and often severely punished those perceived to be ‘traitors’ and ‘counterrevolutionaries’ within its own ranks
.
⁶

Despite international awareness of Indonesian atrocities, it was not until the Indonesian
President Soeharto's fall from power in 1998 in the wake of the Asian Economic Crisis that real change became possible. The new President
B.J. Habibie, announced his government's intention to conduct a referendum in which the people of East Timor would choose between autonomy within Indonesia and independence. The UN was put in charge of conducting the referendum and, following negotiations with the Indonesian government, the Indonesian police were entrusted with providing security. This decision proved to be poor judgement on the part of the UN as, in the lead-up to ballot day on 30 August 1999, a series of violent incidents took place in which East Timorese militia groups, backed by the Indonesian military and police forces, sought to intimidate
voters in order to persuade them of their power to wreak further havoc should they decide to vote for independence.
⁷

Amid this tense environment, an incredible 98 percent of registered East Timorese turned out to vote. Within days of the announcement of the results, however, which demonstrated that an overwhelming majority of East Timorese people were in favour of independence, the territory was subjected to an intensified campaign of violence and abuse at the hands of the Indonesian military and police and their proxy local militias. More than 1,000 people were killed, houses and villages were burned and destroyed, around 400,000 people were displaced (including more than 200,000 into West Timor), and all significant government and commercial basic infrastructure was destroyed.
⁸
On 8 September, the UN was forced to withdraw most of its personnel from the territory due to grave concerns about security, and eventually a multinational military force known as
the International Force for East Timor (INTERFET) was deployed to restore order. The UN then assumed the administration of East Timor, through the
UN Transitional Administration for East Timor (UNTAET), until formal independence was declared on 20 May 2002.

The UNTAET mission represented one of the most ambitious state-building projects undertaken by the UN. Security Council resolution 1272, establishing UNTAET, gave the mission ‘overall responsibility for the administration of East Timor’ and the power ‘to exercise all legislative and executive authority, including the administration of justice’.
⁹
In effect, this was the first time that the UN had exercised full sovereignty over territory independently of any parallel local authority.
¹⁰
UNTAET
was responsible for a daunting array of tasks including: providing security and maintaining order, rehabilitating infrastructure, establishing an effective administration, assisting in the development of civil and social services, supporting capacity building for self-government and reconstructing the justice sector.
¹¹
The World Bank, in cooperation with the Asian Development Bank, had responsibility for facilitating economic reconstruction and development, and focused on the sectors of health, education, agriculture, transport, power and water supply and private sector development. East Timor's transition to independence was expected to take two to three years.

In the immediate aftermath of the post-referendum violence, UN statements and reports were imbued with strong language about the importance of criminal prosecutions to hold the perpetrators accountable for their actions. For example, the Security Council resolution establishing INTERFET in September 1999 condemned all acts of violence and demanded that those responsible be ‘brought to justice’.
¹²
A report of the UN High Commissioner for Human Rights, also in September, concluded that:

To end the century and the millennium tolerating impunity for those guilty of these shocking violations would be a betrayal of everything the United Nations stands for regarding the universal promotion and protection of human rights.
¹³

The demands of East Timorese political leaders and local and international human rights organisations began to coalesce around the need for an international criminal tribunal, along the lines of the tribunals established for Rwanda and the former Yugoslavia
¹⁴
to bring Indonesian
military generals to trial.
¹⁵
These pleas were reinforced by the findings and recommendations of a UN
Commission of Inquiry (COI) which visited East Timor in September 1999. The COI concluded that gross violations of human rights and breaches of humanitarian law had taken place that appeared to implicate the Indonesian military, and recommended that the UN establish an international criminal tribunal.
¹⁶
Rather than following this recommendation, however, the UN Secretary General – responding to assurances from the Indonesian government – decided that the Indonesian courts must first be given an opportunity to investigate and prosecute perpetrators in Indonesia. At the same time, he declared that he intended to strengthen UNTAET's capacity to conduct investigations and collaborate with the Indonesian processes.

The UN Secretary General's decisions led, in 2000, to the creation of the Serious
Crimes Process to investigate and prosecute those who had committed ‘serious crimes’ during the conflict and the 1999 period.
¹⁷
Serious Crimes were defined as genocide, crimes against humanity and war crimes committed at any time, and murder, torture and sexual offences committed between 1 January and 25 October 1999. Located in East Timor's capital city, Dili, this process consisted of a
Serious Crimes Investigations Unit (SCIU) and a ‘hybrid’ or internationalised tribunal, known as the
Special Panels for Serious Crimes (the Special Panels), which was comprised of both East Timorese and international judges, and attached to the Dili District Court. This model was purported to combine the
strengths of an international tribunal with the benefits of local prosecutions. It was promoted as being more meaningful to victim populations due to its proximity to the community and more effective at rebuilding the local judicial system than an international tribunal – factors which were expected to contribute to its local legitimacy
.
¹⁸
A Memorandum
of Understanding (MoU) between Indonesia and UNTAET was signed to ensure cooperation in the exchange of evidence, requests for witnesses and making arrests and the transfer of suspects when needed in the investigation and prosecution of serious crimes.
¹⁹
In response to international pressure, the Indonesian government announced the establishment of its own Ad Hoc human rights court in November 2000 to try, within its jurisdiction, individual perpetrators who had played a leading role in the post-referendum violence.
²⁰

UNTAET and East Timorese leaders were also faced with the question of what to do with the thousands of other cases of ‘less serious’ crimes, including looting, arson, theft and the destruction of property, committed immediately prior to and following the referendum of 1999. It was clear that the nascent domestic legal system, with its inexperienced legal actors and limited infrastructure, would not be capable of dealing with all these issues. A related preoccupation was how to ensure the safe return of some quarter of a million people who remained displaced in West Timor following the referendum.
To respond to these concerns, following a consultative process, UNTAET created the
Comissão de Acolhimento, Verdade e Reconciliação
(Commission for Reception, Truth and Reconciliation/CAVR) in July 2001, as an independent statutory body.
²¹
This body was then formally recognised in the East Timorese
constitution.