Transitional Justice in the Asia-Pacific (30 page)

In addition to securing a cease-fire, the Townsville Peace Agreement included three provisions of particular relevance to the pursuit of justice for human rights violations. First, it included a weapons amnesty, which provided anyone who relinquished their weapon with ‘immunity from prosecution in respect of the stealing or possession of that weapon (or any of a similar kind) at any date after the 1st January, 1998’, as well as a general amnesty.
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The general amnesty for ‘[m]embers, leaders and other civilian advisors associated with the MEF, IFM, and any
Police, Prison Service or RRU or PFF officers who participated in military operations during the course of the ethnic crisis’ provided immunity for criminal acts perpetrated in connection with the Tensions, including ‘killing in combat conditions or in connection with the armed conflict on Guadalcanal.’
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However, as the IFM was not a signatory to the TPA, its members could not benefit from this amnesty provision.

Second, the TPA also made provisions for the location, identification, and recovery of the remains of those killed during the conflict. Third, it also included provisions for post-conflict reconciliation but stopped short of providing for the establishment of a truth and reconciliation commission flagged during earlier peace negotiations. Instead, it suggested that reconciliation be pursued through ‘face-to-face dialogue…at community, village, family, individual and organizational levels’ and be coupled with ‘public display[s] of forgiveness and confession to be organized by the SIG.’
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In addition, the TPA also provided for the establishment of a Peace and Reconciliation Committee ‘to programme and coordinate efforts to achieve full community-based reconciliation and forgiveness throughout Solomon Islands’ which eventually resulted in the establishment of the Ministry of National Unity, Reconciliation, and Peace.
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The TPA enjoyed only limited success. While the International Peace Monitoring Team established to monitor the implementation of the agreement, along with the National Peace Council, a key player in the peace process, managed to facilitate the collection of a large number of weapons, most of those surrendered were old World War II and homemade weapons, leaving the majority of the high-powered weapons seized during the conflict at large.
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In order to facilitate the further surrender of weapons, the Solomon Islands Government instituted Amnesty Acts in 2000 and 2001 which, like the amnesty provision included in the TPA,
controversially included immunity from prosecution for offences such as murder. Significantly, however, the amnesties did ‘not apply to any criminal acts done in violation of international humanitarian laws, [or] human rights violations or abuses.’
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This limitation, it is thought, was included to ‘allay potential international concerns that the Acts had been drafted so as to provide amnesty for grave breaches of the Geneva Conventions that had been allegedly committed by the IFM and the MEF.’
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However, as the precise constitution of ‘human rights violations’ was never specified, precisely which crimes are excluded by the amnesty remains unclear. In any case, very few applications for amnesty were made and, in the end, only two amnesties were ever granted in accordance with the 2000 and 2001 acts.

Most problematic for the TPA was, however, Harold Keke's refusal to lay down arms.
Having split from the IFM and formed the Guadalcanal Liberation Front, Keke continued to rule parts of the Weather Coast of Guadalcanal. During 2002 and the early months of 2003, ‘Keke and his followers threatened and murdered more than twenty people in the areas they controlled.’
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In the first half of 2003  an Australian Seventh Day Adventist missionary was beheaded, six members of the Melanesian Brotherhood were murdered, and the retired police commissioner, Sir Frederick Soaki, was shot dead in Auki, Malaita.
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The Melanesian Brotherhood had played a significant role in attempting to broker peace during the Tensions, with members at one stage actually
‘camping between enemy lines’ to prevent further violence.
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In April 2003, six members attempted to deliver a letter to Harold Keke from the Anglican Archbishop, who had offered to act ‘as go between in peace talks between Keke and the government.’
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Accused of being government spies, two of the Brothers were shot and killed by Keke's men on April 24. The remaining four were held captive overnight and interrogated before being ‘escorted to the beach…and shot beside a grave that had been dug earlier on for them by the GLF.’
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As Kabutaulaka thus notes, in the period after the signing of the Townsville Peace Agreement, the ‘Solomon Islands remained in a state of “latent peace”– a situation where there was fear for the potential for violence in society’ to erupt once more.
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In response, the Solomon Islands Government launched a so-called joint operation in an attempt to capture Keke. This was a disaster. Not only were members of the joint operation accused of committing human rights violations themselves, but Keke and his militants began retaliating against villagers they believed were supporting the joint operation:
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‘They demanded allegiances from villagers and if villagers refused to give it, would torture and kill them and even burn villages to the ground
.’
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This most notorious instance of this took place in the village of Marasa.

The incident at Marasa is, without question, one of the most gruesome atrocities committed during the Solomon Islands Tensions. For three days from June 16, 2003, members of the GLF held 400 villagers hostage on the beach ‘to punish villagers for allegedly aiding a government operations force.’
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Father Lionel
Longarata, an Anglican priest, was tied to a canoe and, along with the rest of the villagers, forced to witness the unspeakable torture and eventual murder of two boys selected for killing. As Longarata stated in his testimony to the Solomon Islands Truth and Reconciliation Commission some seven years later:

They were bashed, butted with their rifle, and stoned, streams of blood running down from their faces, they were tied both hands at their back and were ordered to dance while blood ran from their bodies, eventually on the beach the younger one died on the spot, then elder one tried to escape but he could not do it, they continuously to butt him with the bottom of their rifles, they stoned him and he fall, whilst on the ground one of them with a machete cut his back open, all this happened while everyone was watching, young and old, women and children witnessed everything, after being killed their bodied were dragged further down the beach to where the sun was shining and the heat of the great gravel of Marasa heated their bodied, they finished with they did and looked around and saw me…and they said I will be the next victim, they came towards me gun pointed me with both of my hands tied on my back and I was pushed down to stay between the 2 dead bodies, after two hours the bodies were taken away and then buried in a shallow grave.
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In the end Longarata's life was spared, but the village was burnt to the ground. Just one month later RAMSI arrived and brought an end to the violence
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Although a number of transitional justice mechanisms were mentioned in the Townsville Peace Agreement, the provisions were far too vague to provide any real basis on which to formulate a formal transitional justice process for the Solomon Islands. As a result, the development of a formal transitional justice program for the Solomon Islands has never been seriously discussed at official levels, nor has any coherent process been devised. Rather, those aspects of transitional justice that have been implemented have appeared on an ad hoc basis, as the by-product of other post-conflict state-building exercises or as part of customary conflict resolution practices. As such, they have largely fallen into one of the two approaches outlined above, focusing on either the rule of law or reconciliation.

The
Facilitation of International Assistance Act 2003 passed by the Solomon Islands government to authorize the international intervention came into force on July 21, 2003. Three days later RAMSI arrived. By the end of its first week the administration of RAMSI had decided to focus its initial efforts on three issues: seizing weapons, ending ongoing fighting on the Weather Coast, and arresting Harold
Keke.
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In the end, Keke surrendered peacefully in August 2003, following talks with the head of the international mission, Nick Warner, and was taken into custody to await trial. He was not the only former militia to face incarceration.

In
the early months of the RAMSI mission, large numbers of militia members and police officers were arrested and charged with a range of offences including ‘very serious charges.’
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This took place in accordance with RAMSI's underlying philosophy which held that the fastest way to restore security in the Solomon Islands was to get the guns and the
militia off the streets. In practical terms, it seems that many RAMSI officers ‘saw it as de facto policy…to charge leading militants with something reasonably plausible to get them locked up on remand while they more carefully sought to build evidence against them.’
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Predictably, this practice saw RAMSI face criticism for apparently breaching the terms of the amnesties included in the TPA and in the SIG Amnesty Acts of 2000 and 2001. In the end, however, RAMSI officials decided that as they could not reliably determine who ought to qualify for amnesty – because they could not, as per the terms of the amnesties, reliably establish that suspects had returned ‘all weapons and ammunition and stolen property in [their] possession and in [their] custody’ – ‘all allegations of criminal behaviour would be investigated.’
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Thus, by Christmas at the end of the first year of RAMSI's intervention, just five months after its arrival, ‘most of the militant leaders were under arrest.’
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However, with RAMSI's initial success in restoring law and order and in detaining a large number of militants came a further challenge. Once arrested, suspects needed to be processed through a criminal justice system which, at the time, ‘barely functioned.’
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Indeed, such was its state of disrepair that until the arrival of RAMSI, the Solomon Islands government had done ‘little to investigate or prosecute persons responsible for killings and other abuses, contributing to a pervasive climate of impunity.’
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In accordance with its state-building mission, RAMSI officials maintained that the best, and indeed, only viable way to bring an end to that climate of impunity was to strengthen the criminal justice system to allow it to undertake criminal trials
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In
2005 what became known as the ‘Tension Trials’ began in accordance with Solomon Islands domestic law. The first was the high profile case of Harold Keke, Ronnie Cawa, and Francis Lela who were charged
with the murder of Fr. Augustine Geve, a former cabinet minister and Member of Parliament for South Guadalcanal. Under section 202(a) of the Solomon Islands Penal Code, all three were found guilty of murder in either the first or second degree and given mandatory life sentences.
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On October 28, 2005, the High Court handed down its judgment in the case of the Melanesian Brothers for which Ronny Cawa, Owen Isa, and Joses Kejoa were charged with six counts of murder.
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Although Isa and Kejoa drew on the defence of compulsion/duress defined under Section 16 of the Penal Code to argue that they were not criminally responsible for the murders, the Court found that the accused ‘must have known’ that the GLF was engaged in the ‘ruthless execution…[of] anyone they considered an enemy.’ As the men had not made efforts to leave the GLF, the Court argued that the defence of compulsion/duress was not available to them, found all three guilty of murder, and sentenced them to life imprisonment. Finally, in April 2007, the High Court found four individuals guilty of murder, wrongful confinement, arson, and membership of an unlawful society in relation to the Marasa beach atrocities. Another six individuals were found guilty of manslaughter over the killings of the two boys
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Although these high-profile cases went ahead relatively quickly, the criminal justice system found itself swamped with a large number of complicated cases. While many had hoped that most ‘would be open and shut and that convictions would follow as night follows day,’ this was not the case, and many individuals ended up spending lengthy periods in remand before being tried and, in some cases, acquitted.
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Indeed, the
justice system was caught in a bind. As the Deputy Special Coordinator of RAMSI, Paul
Ash acknowledged, on one hand, ‘no-one is comfortable with delays in the delivery of justice.’ On the other, however, ‘[t]here is no room for short cuts where justice is concerned – either for defendants or for the victims of crime.’
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At the same time, while few, if any other post-conflict peace-building operations have been more successful in securing convictions, particularly among senior militants, RAMSI has faced significant criticisms. In particular, in a Parliamentary Inquiry, RAMSI was accused of ‘pursuing selective justice’ in focusing its efforts on capturing and prosecuting ten most wanted figures.
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As its critics noted, this meant that other ‘big fish’, including prominent political and business leaders, were allowed to get away with serious crimes.
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In addition, some of those charged and imprisoned or held on remand argued that they were political prisoners (although external reports such as the 2005 U.S. State Department's annual human rights country reports have consistently stated that there are no political prisoners in the Solomon Islands). Explicitly referring to the laws of war, these detainees have maintained that they did not act criminally in killing enemy soldiers in battle.
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That said, the murder charges they have faced have all involved the killing of civilians
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