Transitional Justice in the Asia-Pacific (28 page)
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Among the most interesting transitional justice possibilities are those emerging from the activities of East
Timorese NGOs and local victims’ groups. East Timor has an active civil society sector, particularly in human rights advocacy. Since the referendum, activists have rallied behind the popular slogan, ‘No reconciliation without justice’. Predominantly based
in East Timor's capital, Dili, and politicised during the Indonesian occupation, human rights activists are perhaps best described as ‘transnationalised local actors’
113
who promote the globalised discourse of human rights and have links to international human rights organisations such as Amnesty International and Human Rights Watch. Although these connections have enabled activists to build international support for their cause, they have not always been an advantage in the domestic political context where East Timor's political elite has too easily been able to dismiss their campaigns as lacking popular support.
114
In the first few years after the referendum, East Timorese activists were fairly narrowly focused on lobbying for an international criminal tribunal. This, it was commonly argued, was what ‘victims want’. Activists were prominent critics of the UN Serious Crimes Process and the Jakarta-based Ad Hoc human rights court. They were initially wary of the CAVR due to concerns that the commission may sap donor resources which would be better directed to building a more effective criminal justice system.
115
As previously discussed, activists were even more sceptical of the CTF based on their conviction that it was established to close off discussions of the past and avoid calls for an international tribunal.
Since the public release of the CAVR and CTF reports in 2006 and 2008, however, NGO criticism has softened, as activists have begun to see the potential of both reports as advocacy and educational tools. They have lobbied the national parliament to debate and implement the recommendations of
Chega!
and the CTF report. Alliances between East Timorese and Indonesian activists are also being forged on the basis of a
mutual interest in lobbying their respective parliaments to implement the CTF recommendations and prosecute senior members of the Indonesian military.
In the years since the referendum, the justice narratives promoted by East Timorese human rights activists have also begun to broaden. Although campaigns for an international tribunal continue, there appears to be a growing recognition that a single-minded focus on prosecu-tions may not address the multifaceted needs of East Timorese survivors. Issues such as reparations and the need for a Commission for Missing Persons are increasingly part of the agenda. Both issues, it could be argued, are of immense significance to ordinary East Timorese people, many of whom continue to live in impoverished conditions and hold deep spiritual beliefs about the importance of honouring and respecting the dead, including by conducting the necessary rituals to facilitate the safe travel of the soul of the dead to the sacred world.
116
This broadening of priorities is encapsulated by the reflections of the former director of the East Timorese women's rights NGO, FOKUPERS
117
, on working with widows groups. As Manuela Long Pereira explains:
When we speak to women survivors about justice they also say their daily lives are important. They want to send their children to school, they want to know where their husbands bodies are…Some say that if we don't help their lives it is just the same.
118
NGOs have also begun to direct more attention to strengthening victims groups in both Dili and the rural areas. Reflecting a growing awareness amongst NGO leaders that they cannot ‘speak for’ all victims and a belief that that more voices from the grassroots will challenge the leadership's insistence that people are not interested in justice, NGOs organised the first National Victims Congress in 2009. The Congress, which brought
together victims from around the country to Dili, led to the formation of a national Victims’ Network, aimed at strengthening advocacy work in relation to justice, reconciliation and reparations. Nonetheless, given the intensive role NGOs have played in the establishment and cultivation of this network, the extent to which it will become truly ‘grassroots’ one remains to be seen.
Beyond their advocacy efforts, NGOs are also assisting local communities to document their own stories about the past and to conduct commemorations of past massacres. For example, they have helped the local community in Liquica to construct a small monument of an angel at the site of the Liquica church massacre of 6 April 1999, when up to sixty people were killed by the Besih Merah Putih (Red and White Iron) militia group while they were seeking refuge in the church. A mass is now held here each year to commemorate the massacre. They have also assisted local groups to organise commemorations of massacres that occurred earlier in the occupation, such as the 2008 ceremony that took place in Kraras, Viqueque district, to remember a series of brutal killings that occurred in 1983 to quash local uprisings against the Indonesian military. While these NGO initiatives are in part aimed at demonstrating to the national leadership that ordinary people do not wish to ‘forgive and forget’, in order to bolster the campaign for an international tribunal, they may also have local significance. For instance, in a context in which many East Timorese have been unable to recover the remains of their loved ones and in which, as previously noted, there are strong spiritual beliefs about the power exercised by the dead over the lives of their descendants, these initiatives may enable families to develop appropriate rituals to put the spirits of the dead to rest. Given the way in which the violence of the Indonesian occupation permeated everyday life, and contributed to the fragmentation of relationships and the militarisation of society, these initiatives may also help to rebuild bonds of social solidarity within local communities and families. While not without their own politics and power dynamics, local practices of memorialisation and commemoration
also have the potential to tell different kinds of stories from those promoted by national elites, stories of ordinary survival, for example, rather than narratives of triumph and heroism
.
On one reading, the trajectory of transitional justice developments in East Timor can be seen as an example of how ‘pragmatism’ can override ‘principle’ when it comes to the pursuit of prosecutions of the powerful. It is apparent that the political priorities of Western states have overridden the principle of ‘universal jurisdiction’ which denotes that crimes against humanity, war crimes and genocide, should be punished wherever they occur. Despite multiple attempts at truth seeking, criminal prosecution and reconciliation, no Indonesian official has successfully been prosecuted for any crime committed in 1999, and, at this point in time, it seems highly unlikely that the UN Security Council will revisit the option of an international criminal tribunal. Conscious of its geopolitical constraints as a poor nation with limited influence on the international stage, and with its own internal nation-building dilemmas, the East Timorese leadership's emerging narrative of reconciliation is an understandable response.
Yet, this chapter has suggested that this is not the whole story. Beyond the issue of prosecutions, transitional justice mechanisms – in particular the final reports of the CAVR and CTF – have helped to foster some new and unforeseen possibilities. It is too early to say what bilateral negotiations between East Timorese and Indonesian political leaders in the wake of the CTF and parliamentary discussions of the CAVR and CTF reports will achieve, but suffice it to say, a space for ongoing political dialogue about these issues has been created. These reports have also helped to broaden the justice priorities of civil society groups and have been embraced by activists as useful lobbying tools. As the voices of a more diverse group of victims become heard in the justice debate, and
engaged in practices of memorialisation, story-telling, commemoration and advocacy the trajectory of transitional justice developments may further be reshaped.
Transitional justice is often conceptualised as a time-bound process that is confined to a specific transitional period. Underpinned by a notion of ‘breaking with the past’, transitional justice discourse implies a definitive sense of ‘now’ and ‘then’. East Timor's experiences suggest that it is important to take an open-ended, and altogether more political, view of transitional justice. What the ongoing discussions amongst the East Timorese and Indonesian political elite, and the activities of civil society and victims groups, suggest, is that there has been no ‘rupture’ with the past as such and that the process of remembering and responding to the past continues, grounded in past relationships and experiences, and present realities. ‘Dealing with the past’, that is, is a dynamic, fluid and ongoing process, without a predetermined outcome. This process continues to be fundamentally shaped and constrained by East Timor's geopolitical constraints and the new nation's unequal position within the international community. It is also being shaped by an array of different actors, among them, members of the UN Security Council, East Timorese political leaders and opposition party members, NGOs, and local victims groups. Although these actors have vastly different levels of political power and agency, there is, nonetheless, the potential for these interactions to both progress and deepen the transitional justice conversation.
1
Parts of this chapter have appeared in a different form in Lia
Kent
,
The Dynamics of Transitional Justice: International Models and Local Realities in East Timor
, London: Routledge 2012; Commission for Reception Truth and Reconciliation (CAVR).
Chega!
, Dili: CAVR, 2005, part 7.2, p. 8.
2
See UN Security Council Resolution 384, 22 December 1975, and UN General Assembly Resolution 3485, 12 December 1975.
3
The CAVR estimates that approximately 100,000 people died during the occupation. See CAVR,
Chega!
, part 6. Other sources include Geoffrey
Robinson
,
East Timor: Crimes Against Humanity
, Report Commissioned by the OHCHR, July 2003, Geneva: Office of the High Commissioner for Human Rights, 2003, p. 16; Ben Kiernan, ‘The Demography of Genocide in South-East Asia: the Death Tolls in Cambodia, 1975–79, and East
Timor
, 1975–80,’
Critical Asian Studies
, Vol.
35
, No. 4 (2003), pp. 585–597; John
Taylor
,
East Timor: The Price of Freedom
, London and New York: Zed Books, 1999, pp. 84–92; Geoffrey
Robinson
,
If You Leave Us Here, We Will Die: How Genocide Was Stopped in East Timor
, Princeton, New Jersey: Princeton University Press, 2010, p. 51.
4
CAVR,
Chega!
, part 7.
5
Robinson,
If You Leave Us Here
; Ben
Larke
, ‘“…And the Truth Shall Set You Free”: Confessional Trade-offs and Community Reconciliation in East Timor,’
Asian Journal of Social Science
, Vol.
37
, No. 4 (2009), p. 654; CAVR,
Chega!
, part 4.
6
CAVR,
Chega!
, part 5, p. 19.
7
Robinson,
If You Leave Us Here
, p. 106.
8
CAVR,
Chega!
, part 7.5, p. 48.
9
United Nations Security Council (UNSC), UNTAET Mandate, Security Council Resolution 1272 (1999) (UN Doc. S/RES/1272), at
http://www.un.int/usa/sres1272.htm
(accessed 19 May 2010).
10
Jarat
Chopra
, ‘Building State Failure in East Timor,’
Development and Change
, Vol.
33
, No. 5 (2002), p. 28; Simon
Chesterman
, ‘East Timor in Transition: Self determination, State-Building and the United Nations,’
International Peacekeeping
, Vol.
9
, No. 1 (2002), p. 46.
11
UNSC, UNTAET Mandate.
12
United Nations Security Council, Security Council Resolution 1264 (UN Doc. S/RES/1264), 15 September 1999.
13
United Nations Commission on Human Rights (UNHCR), Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor (E/CN.4/S-4/CRP.1), 17 September 1999, para 48.
14
International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY).
15
See, for example, National Council for Timorese Resistance (CNRT), Resolution Commission 3 (Outcomes of the CNRT National Congress 21–30 August 2000), copy on file with author; National Council for Timorese Resistance, ‘CNRT on Recent Events in West Timor; Calls for an International Tribunal, Postponement of CGI Meeting,’ Media Release, 13 September 2000, at
http://etan.org/news/2000b/CNRT2.htm
(accessed 30 November 2009); ‘Urgent Steps Needed to Establish Justice,’ Letter to members of UN Security Council to Members of the United Nations Headquarters from East Timorese NGOs, 24 October 2001, at
http://members.pcug.org.au/~wildwood/01octsteps.htm
(accessed 10 January 2011).
16
Office of the High Commissioner for Human Rights (OHCHR), Report on the International Commission of Inquiry on East Timor to the Secretary General, January 2000 (UN Doc. S/2000/59).
17
UNTAET Regulations 2000/11 and 2000/15.
18
Suzanne
Katzenstein
, ‘Hybrid Tribunals: Searching for Justice in East Timor,’
Harvard Human Rights Journal
, Vol.
16
(2003), pp. 245–246.
19
Republic of Indonesia and the United Nations Transitional Administration in East Timor Memorandum of Understanding between the Republic of Indonesia and the United Nations Transitional Administration in East Timor Regarding Cooperation in Legal, Judicial and Human Rights Related Matters (5–6 April 2000), at
http://www.unmit.org/legal/Other-Docs/mou-id-untaet.htm
(accessed 3 January 2010).
20
Indonesian Law 26/2000.
21
UNTAET Regulation 2001/10.
22
Nahe biti
is practised in many different forms throughout East Timor. It is both a process as well as a philosophy that connotes the willingness on the part of conflicting parties to sit together and resolve past mistakes in order to achieve future harmony and social stability. See Dionesio
Babo-Soares
, ‘
Nahe Biti
: Grassroots Reconciliation in East Timor,’ in Elin
Skaar
, Siri
Gloppen
and Astrid
Suhrke
(eds.),
Roads to Reconciliation
(Lanham, MD: Lexington Books, 2005, pp. 225–246).
23
See, for example, views expressed by UN Secretary General Kofi Annan in David
Cohen
, ‘Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future?’ in
Analysis from the East-West Center
, Vol.
61
(Honolulu, HI: East-West Center, 2002), pp. 2–3.
24
See, for example, views of the UN official cited in John Aglionby, ‘Timorese Pay Price for Stability,’
The Guardian
, 15 November 2000, at
www.guardian.co.uk/world/2000/nov/15/indonesia.easttimor
(accessed 17 December 2009).
25
Nehal
Bhuta
, ‘Great Expectations – East Timor and the Vicissitudes of Externalised Justice,’
Finnish Yearbook of International Law
, Vol.
12
(2001), p. 173.
26
J.
Braithwaite
, H.
Charlesworth
, and A.
Soares
,
Networked Governance of Freedom and Tyranny: Peace in Timor-Leste
, Canberra, ACT: ANU E-Press, 2012, p. 193.
27
Aglionby, ‘Timorese Pay Price.’
28
Larke, ‘ “…And the Truth Shall Set You Free,’ p. 655.
29
Reyko
Huang
and Geoffrey
Gunn
, ‘Reconciliation as State-Building in East Timor,’ In
Lusotopie
(2004), p. 24.
30
Bhuta, ‘Great Expectations,’ p. 176; Huang and Gunn, ‘Reconciliation as State-Building,’ p. 24.
31
Huang and Gunn, ‘Reconciliation as State-Building,’ p. 24.
32
Bhuta, ‘Great Expectations,’ p. 176.
33
See, for example, ‘Gusmao Calls for Reconciliation in Jakarta Speech,’
Lusa
, 20 April 2001, at
http://www.etan.org/et2001b/april/22-30/20gusmao.htm
(accessed 7 December 2012).
34
Republic of Indonesia and the United Nations Transitional Administration in East Timor, Memorandum of Understanding, 2000, section 1.
35
Cohen, ‘Seeking Justice on the Cheap,’ p. 7.
36
David Cohen, ‘Justice on the Cheap Revisited: the Failure of the Serious Crimes Trials in East Timor,’ Analysis from the East-West Center, No. 80 (Honolulu, HI: East-West Center, 2006), p. 5.
37
Elizabeth
Stanley
,
Torture, Truth and Justice: the Case of Timor-Leste
, London: Routledge, 2008, p. 173.
38
See Cohen, ‘Seeking Justice on the Cheap.’
39
For detailed critiques of the Serious Crimes Process, see the following prominent studies: Cohen, ‘Justice on the Cheap’; Megan Hirst and Howard Varney, ‘Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor,’ ICTJ Occasional Paper Series, New York: International Center for Transitional Justice, 2005; Caitlin Reiger and Marieke Wierda, ‘The Serious Crimes Process in Timor-Leste: In Retrospect,’ ICTJ Prosecutions Case Studies Series, New York: International Center for Transitional Justice, 2006; Katzenstein, ‘Hybrid Tribunals.’
40
See Stanley, ‘Torture, Truth and Justice,’ p. 96.
41
Cohen, ‘Seeking Justice on the Cheap,’ p. 5.
42
Cohen, ‘Seeking Justice on the Cheap,’ p. 17.
43
Richard
Burchill
, ‘From East Timor to Timor-Leste: A Demonstration of the Limits of International Law in the Pursuit of Justice,’ in J.
Doria
, H.-P.
Gasser
and M. C.
Bassiouni
(eds.),
The Legal Regime of the ICC: Essays in Honour of Prof. Igor Blishchenko
, Leiden and Boston: Martinus Nijhoff, 2009, p. 282.
44
Although Indonesian officials had announced in August 2001 that court hearings would begin in October, it was then announced in October that the judges would not be named until December. (La'o
Hamutuk
, ‘Sites of Justice-Related Efforts,’
La'o Hamutuk Bulletin
, Vol.
2
(2001), pp. 6–7.
45
CAVR, Exec Summary, pp. 20–23.
46
CAVR, Annex 3.
47
See, for example, Lia Kent, ‘Unfulfilled Expectations: Community Views of the Reconciliation Process,’ Report for the Judicial Systems Monitoring Programme, Dili: Judicial Systems Monitoring Programme, 2004; Pierre
Pigou
, ‘The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation,’
Evaluation Report for the UNDP
, Dili: United Nations Development Programme, 2004.
48
Gusmão quoted in Joseph
Nevins
,
A Not So Distant Horror: Mass Violence in East Timor
, Ithaca, Cornell University Press, 2005, p. 154.
49
Ramos-Horta, quoted in Global Policy Forum, ‘East Timor Says No to UN tribunal,’
Laksama.Net
, 9 August 2004, at
www.globalpolicy.org/intljustice/tribunals/timor/2004/0809no.htm
(accessed 10 December 2009).
50
Juan
Federer
,
The UN in East Timor: Building Timor-Leste, a Fragile State
, Darwin: Charles Darwin University Press (2005), p. 106.
51
UNMISET was initially given a one-year mandate, which was later extended until 20 May 2004 and followed by another extension until 19 May 2005. The mission was then replaced by the United Nations Office in East Timor (UNOTIL), a much smaller mission, from May 2005 to August 2006. Unlike UNTAET, UNOTIL was not a peacekeeping mission but a political mission. Following the violence of April and June 2006, the UN Security Council established a new, expanded mission, called the United Nations Integrated Mission in Timor-Leste (UNMIT), which was given a far-reaching mandate to assist the country in overcoming the consequences and underlying causes of the violence.
52
See Cohen, ‘Justice on the Cheap.’
53
United Nations, Report of the Secretary General on the United Nations Transitional Administration in East Timor (UN Doc. S/2002/432), 14 April 2002.
54
For an excellent overview of the problems of the Ad Hoc Human Rights Court, see David Cohen, ‘Intended to Fail: The Trials before the Ad Hoc Human Rights Court in Jakarta,’ ICTJ Occasional Paper Series, New York: International Center for Transitional Justice (2003).
55
International Center for Transitional Justice and Commission for the Disappeared and Victims of Violence (ICTJ/Kontras), ‘Derailed: Transitional Justice in Indonesia since the Fall of Soeharto,’ Jakarta: ICTJ/Kontras (2011).
56
Hirst and Varney, ‘Justice Abandoned?,’ p. 25.
57
Detik Com, quoted in Susan
Harris-Rimmer
,
Transitional Justice and the Women of East Timor
, Unpublished PhD Thesis, Australian National University, p. 191.
58
UN News Centre (2003), Timor-Leste Not UN Indicts Indonesian General for War Crimes, UNMISET Statement, 26 February 2003, at
http://www.un.org/apps/news/story.asp?NewsID=6273&Cr=timor&Cr1
(accessed 1 August 2010).
59
Elizabeth
Stanley
, ‘The Political Economy of Transitional Justice in Timor-Leste’ in K.
McEvoy
and L.
McGregor
(eds.),
Transitional Justice from Below: Grassroots Activism and the Struggle for Change
(Oxford: Hart Publishing, 2008), p. 177; see also Hirst and Varney, ‘Justice Abandoned?,’ p. 25.