Transitional Justice in the Asia-Pacific (26 page)

The government's increasingly ‘forward-looking’ approach to building relations with Indonesia was taking shape in a context in which the UN mission was downsizing. Following independence, UNTAET was
replaced with a ‘patchwork’ of smaller successor missions,
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the first of which was the
United Nations Mission of Support in East Timor (UNMISET).
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Although some notable attempts were made to improve the functioning of the Special Panels and the management of the SCIU,
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there was little additional commitment of resources, extension of time, or strengthening of the mandate of the Serious Crimes Process. According to the initial UNMISET ‘implementation plan’, investigations were to be completed by 31 December 2002 and trials completed by the end of 2003, when the mission itself was initially due to conclude.
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Compounding the problematic nature of this plan was the fact that the flaws in the Indonesian Ad Hoc Human Rights Court established in Jakarta had by now become glaringly apparent.
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Although twelve trials eventually took place between March 2002 and August 2003, and six defendants were found guilty in the first instance, all six were acquitted on appeal.
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The distancing of both the UN and the East Timorese leadership from a prosecutorial agenda was laid bare in the controversy that surrounded the indictment of General
Wiranto. On 24 February 2003, the SCIU
issued an indictment against General Wiranto, the Minister of Defence and Security and Commander of the Indonesian Armed Forces at the time of East Timor's referendum, charging that he was responsible under international law for the crimes against humanity of murder and deportation, under the doctrine of command responsibility.
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In response, the Indonesian Foreign Minister, Dr Hassan
Wirajuda, stated that his government would ‘simply ignore’ the indictment on the basis that the UN did not have a mandate to try Indonesian citizens in East Timor.
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Shortly after this, UNMISET also attempted to absolve itself of responsibility for the indictment, declaring that it had been issued through the prosecution service of East Timor and not the UN.
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As
Stanley observes, although the UN's position was technically correct, it was disingenuous, as the UN had set up the judicial process and the SCIU was staffed by UN employees.
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The East Timorese government responded by declaring that the indictment was the work of the UN and not of East Timor and followed this by declining offers of overseas aid for the funding and staffing of the Serious Crimes Process.
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Tensions mounted after the Special Panels for Serious Crimes issued its warrant on 10 May 2004 for the arrest of General Wiranto, who, by this point, was a front-runner in the election campaign for the next president of Indonesia. Not long after this, President Xanana Gusmão and Indonesian President Megawati Sukarnoputri met and agreed that
outstanding human rights issues between the countries should be resolved through a ‘reconciliatory approach’.
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These actions influenced the East Timorese General Prosecutor who had been originally supportive of the indictment. Reversing his position, he presented a motion to the Court seeking to have the indictment against Wiranto ‘revised’
.
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Not long after shelving the Wiranto indictment, the East Timorese and Indonesian governments agreed to establish their own bilateral
Commission of Truth and Friendship (CTF). Following the meeting between Presidents Gusmão and Sukarnoputri in May 2004, Gusmão met with General Wiranto, hugged him as an ‘act of reconciliation’ and reportedly referred to him as his ‘dear friend’.
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Foreign Minister
Ramos-Horta then put forward a proposal for an ‘International Truth and Reconciliation Panel, which was to be composed of eminent persons from Asia.
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The concept evolved into a proposal for the bilateral CTF which was publicly announced by the Presidents in March 2005.

The CTF was emblematic of the East Timorese leadership's promotion of a nation-building agenda that stressed moving on from the past and building diplomatic relations with Indonesia. The CTF's terms of reference explained that ‘Indonesia and Timor-Leste have opted to seek truth and promote friendship as a new and unique approach rather than the prosecutorial process’.
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They called for ‘definitive closure of the issues of the past [that] would further promote bilateral relations’
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and emphasised the need to establish ‘institutional responsibilities’ rather than identifying and assigning individual blame. While the CTF was empowered to seek the ‘conclusive truth’ about the violence of 1999 and had the power
to recommend amnesties and rehabilitation of those ‘wrongly accused’, it was precluded from recommending prosecutions.

The CTF was heavily criticised by local and international human rights activists from its very inception. They condemned it as a mask to hide back-door agreements between elite political leaders in Indonesia and East Timor to end all prosecutorial efforts. Truth and justice, they argued, were being traded off for ‘friendship’.
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The UN also declined to participate in the CTF, citing concerns about its amnesty provisions, in particular the lack of clear criteria for when amnesty would be recommended, including in relation to the international crimes of crimes against humanity and war crimes.
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More specifically, critics saw the CTF as an attempt by the East Timorese government to divert attention away from the proposal of the UN Secretary General to appoint a Commission of Experts (COE) to review justice developments in East Timor, which, it was anticipated, would recommend reconsideration of the establishment of an international criminal tribunal. These suspicions were reinforced by a joint press release issued by the foreign ministers of Indonesia and Timor-Leste, which stated ‘In the light of the initiative of the Heads of States of Indonesia and Timor-Leste [to establish the CTF], the said initiative of the UN Secretary-General [to appoint a COE] appears to be redundant’.
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The CTF's credibility in the eyes of human rights activists was further eroded once it began public hearings, which were dominated by senior Indonesian public officials, members of the TNI and former militia commanders. Observers noted that these individuals presented views that were heavily skewed towards the perspective of the institutions they represented and were rarely subjected to rigorous scrutiny by CTF commissioners.
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Opportunities for victims to participate in public hearings were also highly circumscribed. According to observers, victims who were invited to give testimony were treated poorly, often finding themselves in rooms filled with uniformed members of the TNI who ridiculed and intimidated them.
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The fact that few public outreach programs were undertaken by the CTF only contributed to its reputation as a ‘corrupt, disingenuous truth commission
’.
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It was soon after these developments that the CAVR's final report
Chega!
(No More!/Stop!/Enough!) was released. Tabled in East Timor's parliament in November 2005,
Chega!
presented a detailed and disturbing account of the ‘widespread and systematic atrocities’ committed by members of the Indonesian security forces during the occupation, which it suggested, amounted to crimes against humanity.
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It also held the Indonesian government and security forces ‘primarily responsible and accountable’ for the deaths of between 100,000 and 180,000 civilians from hunger and illness as a direct result of the occupation.
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Chega!
also drew attention to a number of uncomfortable and controversial facts about the involvement of the international community in the twenty-four-year Indonesian occupation. For instance, it criticised the policies and practices
of a number of Western states, including Australia, the United States and the UK, for their support of the Indonesian regime. Amongst its many recommendations,
Chega!
proposed that the UN's Serious Crimes Process be continued and that the UN be prepared to institute an international criminal tribunal should Indonesia persist in the obstruction of justice.
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It also called for the establishment of a reparations fund to assist the most vulnerable victims, which would be partially financed by contributions from governments and institutions that had provided military support to Indonesia.

Maintaining its reconciliatory stance towards Indonesia, the East Timorese leadership was critical of
Chega!,
particularly its recommendations. In his 23 January 2006 speech before the UN Security Council
, President
Gusmão argued that it was more important that East Timor follow the path of ‘restorative justice’ than pursue prosecutions, by which he meant restoring relations with Indonesia and fostering social harmony:

I have to ask myself if it is in our national interest, which must include social harmony, to adopt a process that I am told by some friends will bring justice, and have this process go on for years, and possibly set back our democratic consolidation, that is being undertaken in Timor-Leste and Indonesia respectively? The answer that I came to, after wide consultation with the people, was that it is not.
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With regards to reparations, President Gusmão suggested that the international community had already made amends for their mistakes by providing significant development assistance to East Timor since 1999, and argued that demanding reparations would make the new nation seem ‘ungrateful’ in the eyes of the international community. In a letter, President Gusmão reassured international donors that he did not endorse the report's recommendation for reparations because of the commitment of the international community to the rebuilding of East Timor. He wrote:

How can we go to the world community, one that was indifferent to our plight for too long, when it did finally help us to achieve independence and made enormous contributions exceeding $1 billion to help us cope with our emergency situation? We still need their help and should not be ungrateful for what they have contributed. They are making amends for their mistake.
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The decision of key members of the East Timorese leadership to distance themselves from the CAVR recommendations and establish the bilateral CTF thus represented a deepening of the leadership's reconciliatory narrative in a context of their growing awareness of their new nation's geopolitical constraints
.

Interestingly, following the violent events of 2006 (sometimes referred to as the 2006 crisis), both the UN and the East Timorese leadership appeared to demonstrate – at least on the face of it – a willingness to reassess their transitional justice approach. The crisis, which was precipitated by the government's dismissal of around one-third of the military, who had left their barracks complaining of poor pay and conditions and ethnic prejudice, soon became a catalyst for a range of disaffected groups to express their diverse grievances.
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By the middle of 2006, the state was ‘largely paralysed’.
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Tens of thousands of people were living in refugee camps in and around Dili, and many houses had been destroyed.
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The crisis also brought to the fore a number of serious issues within the East
Timorese government regarding the increasing politicisation of the military and police, the exercise of personal power in political decision making, and the resurfacing of grievances and ideological differences within the East Timorese resistance movement, some of which harked back to the 1970s and 1980s.
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It exposed, too, the misguided nature of the UN's assumption that East Timor could make the ‘transition’ to a stable, liberal democracy, within a two- to three-year period.

In response the violent acts committed during the crisis, the UN High Commissioner for Human Rights appointed a special Commission
of Inquiry (COI) in June 2006. Although the crimes committed during the Indonesian occupation did not fall within its mandate, the COI's final report concluded that the violent events of 2006 were ‘the expression of deep-rooted problems inherent in fragile State institutions and a weak rule of law’ and called for the need for an end to the ‘culture of impunity’ in East Timor.
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In response to the COI, a new expanded UN mission – the
United Nations Integrated Mission in Timor-Leste (UNMIT) – was announced on 25 August, mandated, among other things, to establish a new Serious Crimes Investigation Team (SCIT) to resume investigations into serious crimes cases committed in 1999 that remained outstanding since the closure of the SCIU in 2004 and to strengthen the capacity of domestic institutions to prosecute serious crimes.
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For its part, the East Timorese leadership's stated willingness to address the past was evident at the swearing-in ceremony of Jose
Ramos-Horta as the nation's new president on 10 July 2006, at which Ramos-Horta acknowledged that ‘the extensive CAVR report is an encyclopaedia of our history, both rich in teachings and suffering. We must utilise its great teachings to better understand today's crisis and to help prevent
future
crises’.
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Gusmão's speech at the swearing-in of members of the new government in 2007 similarly made reference to the need to learn the lessons of the past in order to understand the current crisis and protect the future.
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