Pace, John; Harris Rimmer, Susan --- "East Tirnor: Hamstrung justice" [2003] AltLawJl 41; (2003) 28(3) Alternative Law Journal 143

• Hamstrung justice
• Postscript

Hamstrung justice

JOHN PACE AND SUSAN HARRIS RIMMER^[*] respond to the preceding Brief 'East Timor- Justice Delayed' by Nehal Bhuta.

The preceding Brief by Nehal Bhuta 'East Timor-Justice Delayed' provides an interesting analysis of the handling of the crimes against humanity committed against the East Timorese, particularly in the period immediately prior to, and during the process of, the beginning of the transition of East Timor to independence.

Bhuta argues that justice has not yet been done, and concludes:

Almost four years have passed since the UN Secretary-General deferred consideration of an international criminal tribunal to give Indonesia the chance to prosecute its own. In light of East Timor's poverty and political vulnerability, it is unfair to expect its new government to shoulder the political and financial costs of bringing senior Indonesian military figures to justice. The time has come for the Secretary-General to return the question of justice for East Timor to the Security Council for action.

International concern at impunity for perpetrators of crimes against humanity has long been at the forefront of the process of strengthening the institutions for the protection of human rights. In 1999, Mary Robinson, then United Nations High Commissioner for Human Rights, with great significance, said:

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 protection and promotion of human rights.^[1]

Bhuta summarises the record of UNTAET and of Indonesia in bringing the violators of human rights in East Timor to justice and concludes that these efforts have been largely unsuccessful.

The general view of commentators and human rights groups has been that the trials within East Timor were well intentioned but massively under-resourced, hamstrung by jurisdiction, and rapidly running out of time. The trials in Indonesia have roundly been dismissed as a 'sham' and accused of deliberate design to avoid successful prosecutions of military commanders. Mixed messages from the actors involved blur this demarcation, however. For example, a former senior staff member of the Serious Crimes Court in Dili who resigned last year was quoted in 2002 as saying: 'There is no doubt, in my mind, that we were not properly funded because they [the UN] did not want results'.^[2]

We pose the question: is it fair to conduct a 'trial of the trials', without taking the totality of an extremely complicated process into account, and without comparison to the inordinately difficult task of transitional justice in other jurisdictions - Yugoslavia, Rwanda, Sierra Leone, Cambodia to name a few? The core issue is justice for the wrongs that have been committed in East Timor. The substantive problem is that the international political process has led to a mixed approach consisting of entrusting the justice process to two national jurisdictions, neither of which had the slightest chance of carrying out their mandate for a myriad of reasons, and none of these reasons of their own doing.

There is no doubt that justice for the victims of the crimes committed in East Timor still has to be done. An analysis of the reasons - which regrettably does not appear in the article-is necessary, if a more effective formula is to be found.

Such analysis will show two important conditions that will need to be addressed. The first is that of the political will, at the national, as well as at the international level.

As Bhuta also points out, the political will at the national level, both in East Timor and in Indonesia, is not strong enough to give such fledgling institutions the impetus and standing that they need to carry out their mandate. Both East Timor and Indonesia were in a state of transition to a democratic form of government, transitions that carry with them huge implications of stability and security, political and economic. The crimes which are the subject of both jurisdictions arise from the same acts; the perpetrators are members of the Indonesian military and police establishment, most of them officers in the highest ranks of institutions that, in Indonesia, are involved in the reform process and having to adapt themselves to new roles as part of this reform.

In Indonesia, this necessarily influenced the political will in the executive and the legislative sectors; in East Timor, the priority for dealing with these crimes was shared with other, formidable priorities, and the Memorandum of Understanding with Indonesia must have further diluted the priority that the investigation and prosecution of these crimes called for. In other words, the political will at the national level in both states was not up to the level required to see the machinery of justice put into effect.

At the international level, the political will, in spite of the expressions of outrage and condemnation, and the cogent reports of the UN Commission on Human Rights, was simply not of the level to bring about the kind of consensus that led to the establishment of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The procedure for convening the extra-ordinary session of the Commission on Human Rights in September 1999, and the complications surrounding that session, provided clear evidence of the absence of international consensus to handle the crimes through international action. Today, the international political will is even less likely to provide that consensus. It is, therefore, not sufficient to propose placing the matter of justice in the crimes committed in East Timor with the Security Council, since this will delay justice even further.

The second condition is that of practicality. In Indonesia, the promulgation of Law 26/2000 by Indonesia setting up human rights tribunals which provides also for ad hoc tribunals to take up cases occurring in the past, the appointment of the judges and of the prosecutors, and generally, the organisation of the trials, were all done in a situation where there was no experience or precedent. The Law is largely modelled on the Rome Statute, which is yet to be implemented. The ICTY and ICTR experience showed the complications and considerable resources needed to carry out the investigations and trials. There was - and still is - no other similar institution at the national level in any other country. Unlike the ICTR, the ICTY and the International Criminal Court, the Indonesian Human Rights Tribunal does not have its own rules of evidence and procedure, but applies the Code of Criminal Procedure used in ordinary criminal trials. Thus, among other differences with the international tribunals, there is no provision for pre-trial procedures, putting the judges in a situation of 'fait accompli' in regard to the indictments that they have to test. Regulation 2/2002, providing for witness protection, is no substitute for the arrangements for victim and witness protection provided in the international tribunals. These, and other considerations, reduce the scope of the trial considerably, since they affect the availability of witnesses, their testimony and, generally, the validity of the process. It is these practical aspects that affect the conduct of the trials.

Amid conspiracy claims, the basic lack of competence attributed to the Indonesian court has been less analysed than it should be. It should be noted that the international ad hoc tribunal for Rwanda faces similar allegations of bias and mismanagement, as did Yugoslavia to a lesser extent. Both international tribunals took many years to reach convictions and develop proper procedures. Prosecutor Mohammed Yusuf has defended the Indonesian court's record and pleaded for patience: 'This is a new area for prosecutors and judges in Indonesia. We have never had a Human Rights Court before.'^[3] There is evidence that international opinion has had an effect on some judges-Judge Roky Panjaitans has been quoted as being 'embarrassed' over the public criticism of earlier acquittals of soldiers and police.^[4]

Ifdhal Kasim of the Institute for Policy Research and Advocacy (ELSAM) has acknowledged that unknowledgeable and poorly trained judges and prosecutors made for very poor performance.

The judges and prosecutors are not even given appropriate literature to learn about other human rights cases in other countries, although the information is very important to help them to take action. So only the creative prosecutors or judges, who will spend extra time and money to get the information can understand human rights.^[5]

On the East Timor side, in spite of the proclamation of the applicability of international human rights law in the first Decrees of UNTAET, East Timor did not have-and still does not have -the means or the resources to conduct such trials. Current arrangements, relying on transient internationals in the absence of infrastructure, remain inadequate.

Bhuta's comments regarding the indictment process in particular are correct,^[6] but perhaps we are focusing on the wrong issues if the international community is to avoid such a situation again. It may have been far preferable, for instance, to go into the reasons why UNTAET failed to set up a proper administration of justice system in East Timor, not in order to indict UNTAET, but to explain the enormity of the problem of resolving transitional justice issues.

If the national jurisdictions are not working satisfactorily, both in East Timor and in Indonesia, and the Security Council is not about to agree on an international tribunal, what would be the next step in the quest for justice in the crimes committed in East Timor?

The Indonesian Ad Hoc Human Rights Court may not be completely ill conceived and may still hold some value for the future. Certainly Indonesia should be encouraged by the international community to try their own violators of human rights. Under international law a sovereign nation must be given the opportunity to demonstrate accountability in its own courts before any international war crimes tribunal may be convened.

The tribunal is not the only mechanism in the arsenal of transitional justice; both East Timor and Indonesia have, or can have truth and reconciliation commissions. Thought may be given to supporting the work of these institutions in order to address cases that are covered by their mandates. Clearly, these commissions cannot be invoked to try crimes against humanity, but they can make a significant contribution to creating a culture in which the prosecution of such crimes is made less of a challenge.

There is an important role for the international community to play in this quest, and with some urgency. The UN Office of the High Commissioner for Human Rights should immediately resume its technical cooperation program in Indonesia, which had been developing since 1994 and which was suspended at a time when, perhaps, it was most needed. With the support of this program, the strengthening of the human rights tribunals could be coordinated and many of the practical elements that we have addressed above, could be the focus of support.

In East Timor, the Office of the United Nations High Commissioner for Human Rights might well strengthen its focus and support for the government, consistent with its role in the international support from the UN system, for the investigation and prosecution of these crimes.

No one can deny that the international community needs to make up for the imbalance between rhetoric and action when it comes to the proper functioning of the human rights courts.

The consequences for the UN if it does not take these steps might be severe. What is at stake in these trials is not only justice in individual cases but also the rewriting of history. Ian Martin, who supervised the UN-organised independence ballot, has said that the court was accepting a 'mythical version' of events-that troops and police were powerless to halt violence between pro-integration and pro-independence East Timorese factions. In reality, Martin said, the army had created the militias, which waged a campaign of terror and coercion against pro-independence leaders and supporters.^[7]

In this sense, Bhuta's contention is correct. The UN has the responsibility to push for justice for such blatant human rights violations in Timor, and it has not yet fulfilled that responsibility. The mechanisms that were put in place were completely hamstrung from the outset. The Indonesian and Dili Courts will need a greatly renewed commitment of resources and political energy and a much longer time frame to succeed, but it is still possible.

Postscript

Bhuta has regrettably missed the points made in our remarks. We believe that the prosecution of crimes against humanity at the national level is an important development in the process of implementation of international human rights norms. The Indonesia experience is the first of its kind and needs strong international support as distinct from a 'veneer of technical cooperation'. It is too important to discard.

We do not believe that the kind of approach suggested in his article is going to improve the chances of getting justice done; to send the issue to the Security Council is to bury the issue of justice for the victims of human rights crimes.

---

^[*] John Pace is from the Australian Human Rights Centre, University of NSW, where he is a Visiting Fellow in the Faculty of Law.

Susan Harris Rimmer is an SJD candidate at the Australian National University.

©2003 John Pace and Susan Harris Rimmer.

^[1] United Nations Office of the High Commissioner for Human Rights, 'Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor', UN Doc E/CN.4/S-4/I999.

^[2] Quoted in Martinkus, John, 'Beyond Justice', Bulletin, 11 June 2002, p.34.

^[3] Greenlees, Don, 'Human rights are on trial and so is the court', Australian, 25 November 2002, p.12.

^[4] Greenlees, Don, above, ref 3.

^[5] Kurniawan, M.N., 'No hope of punishment', Jakarta Post, 2 December 2002.

^[6] Agence France Presse reports that Munarman, who heads the Indonesia Legal Aid foundation, noted that the verdict in the Suratman trial was 'not surprising'. 'The construction of the ad hoc rights court is clearly aimed at trapping the perpetrators at the scene, not those who gave the command', he said, above, ref 5.

^[7] Agence France Presse, 'Rights court acquits former Dili military chief', 29 November 2002.