Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (27 page)

Caitlin Reiger

International Center for Transitional Justice

 

We are all here to build a high quality of justice ‐ this Special Panel takes part in the building of international justice and hereby the international community to stop impunity.
[1]

 

 

[T]he objective of prosecuting and punishing the perpetrators of the serious crimes committed in East Timor in 1999 is to avoid impunity and thereby to promote national reconciliation and the restoration of peace
.
[2]

 

After twenty‐four years of illegal military occupation by Indonesia, in late 1999 East Timor emerged into a transition period of
United Nations administration for two and a half years. Recovery from the violence and devastation wrought by the departing Indonesian forces was not yet complete when the new nation of the Democratic Republic of Timor Leste was declared on May 20, 2002.
[3]
During the intervening period, the first trial for crimes against humanity committed by pro‐Indonesia militia members took place before Timor Leste's
Special Panels for Serious Crimes in the capital Dili, opening and closing with the grand aspirations described in the above quotations. Like Sierra Leone and other states described in this volume, Timor Leste adopted a twin track to the question of accountability and reconciliation with the country's difficult past, combining retributive and restorative justice through criminal trials as well as a
Commission for Reception, Truth and Reconciliation (CAVR). Simultaneously, neighboring Indonesia has now conducted its own trials for crimes committed in 1999 in Timor Leste, through its
Ad Hoc Human Rights Court. As the CAVR is analyzed in greater detail in Chapter
7
below, it will be examined here only to the extent of its overlap and interaction with the formal prosecution of serious crimes.

One of the defining features of Timor Leste's experience with transitional justice has been the coexistence of these multiple and hybrid efforts to provide accountability for the human rights violations that
had occurred in the territory. A congruence of political and historical factors has seen the various efforts sometimes overlapping, sometimes competing, sometimes complementing one another. It is in this context that this chapter examines the development and implementation of formal justice initiatives for serious crimes within Timor Leste.
[4]
The Special Panels for Serious Crimes are often described as a hybrid tribunal due to the blend of national and international features, although a strikingly different hybrid model to the Special Court for Sierra Leone, the hybrid courts in Kosovo or the proposed Extraordinary
Chambers in Cambodia.
[5]
They exemplify some of the dangers and limitations, as well as the potential, of these hybrid efforts.

This chapter will only briefly consider the history and nature of the human rights violations, leaving most of the historical information to Chapter
7
. It will outline the national and international imperatives for transitional justice in Timor Leste, and the sequencing and establishment of the
Special Panels for Serious Crimes and the Serious Crimes Unit to investigate and prosecute those violations. The next sections will consider the complementary and conflicting relationships of these institutions with both the
CAVR and the
Jakarta trials. Finally, the achievements of the Special Panels are evaluated in the light of the assumptions that are increasingly made about hybrid tribunals: that they can provide an international standard of justice at reduced cost and at a faster pace than the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda; that they have the potential for a legacy of a justice process that is relevant to the local community, especially the victims; and finally, that they can help rebuild a sustainable justice system based on the rule of law.

As recounted elsewhere, Indonesia invaded the Portuguese colony of Timor Leste on December 7, 1975. Over the next 24 years, it carried out military offensives against pro‐independence guerilla forces, during which hundreds of thousands of Timorese died as a result of massive military assaults against civilians, starvation and disease resulting from forced displacement. Torture, disappearances, land confiscation, forced sterilizations and general intimidation followed. In January 1999, new Indonesian
President Habibie agreed to hold a UN‐supervised referendum, leaving security in the hands of Indonesian military and police. These security forces attempted to control the outcome of the referendum through the creation of East Timorese militias. When, on August 30, 1999, the population overwhelmingly voted for independence, the security forces and militias exacted vengeance through massive forcible displacement and violence that left at least 1,300 people dead and near total devastation of the territory's property and infrastructure.
[6]
Thus,
while the post‐ballot violence was extreme because of its intensity and the scale of the physical destruction, it occurred against a backdrop of almost 25 years of protracted abuses and followed familiar patterns.

After a multinational peacekeeping force had re‐established security, the
UN Security Council placed the half‐island under the full executive and legislative control of the UN Transitional Administration for East Timor (
UNTAET) with the objective of preparing the territory for independence.
[7]
Although the Security Council mandate included specific responsibility for “the administration of justice”, it made only general mention of the need for justice for past abuses and the importance of reconciliation, neither of which received any coordinated early attention by UNTAET due to the overwhelming humanitarian crisis.
[8]
UNTAET's task included managing the initial post‐conflict humanitarian emergency of a largely homeless population, establishing the ground‐work for developing basic state infrastructure, including governance institutions and a public administration. It was also tasked with disarming
FALINTIL, the resistance guerilla force, managing relations with Indonesia and facilitating the return of the large numbers of displaced people still in camps in West Timor under the control of militias.
[9]
At the very least, however, there was a clear “moral imperative” for the UN to make some arrangements towards justice.
[10]
The Secretary‐General told the General Assembly in late 1999 that:

 

[a]ccounting for the violations of human rights which occurred in the aftermath of the consultation process is vital to ensure a lasting resolution of the conflict and the establishment of the rule of law in East Timor.
[11]

 

East Timorese demands for justice focused on the establishment of an ad hoc international criminal tribunal, such as those created for the former Yugoslavia and Rwanda. These calls were echoed by UN‐commissioned reports into the causes of the atrocities,
[12]
which concluded that accountability was a matter of international collective responsibility:

 

the United Nations, as an organization, has a vested interest in participating in the entire process of investigation, establishing responsibility and punishing those responsible and in promoting reconciliation. Effectively dealing with this issue will be important for ensuring that future Security Council decisions are respected.
[13]

 

Nevertheless, the international community preferred a double‐track of
national
mechanisms for accountability: within Indonesia, as well as
within Timor Leste.
[14]
Indonesia's fragile democratic development after the fall of the
Suharto regime was still dependent on the support of the powerful military, whose actions would have been directly challenged by the establishment of an international tribunal, a risk that the
Security Council was not prepared to take. Whether or not the East Timorese people were prepared to take such a risk is difficult to assess, as the Indonesian withdrawal had left a power vacuum and the resistance leadership was largely consumed with the humanitarian crisis.

Yet it was not simply the case that purely
national
processes were to achieve this
international
aim. Leaving aside the Indonesian process for a moment, action within Timor Leste could never be merely a national effort, not least because of the hybrid nature of the situation. National sovereignty was temporarily being exercised by the international community on behalf of the East Timorese. The UN's highest human rights official, Mary Robinson, stated that the international community had a duty under international law and practice to do its utmost to hold perpetrators accountable and provide justice to victims.
[15]
Whether or not
UNTAET was under a duty to prosecute those responsible for the international crimes, either in its national or international capacity it at least had the right to do so.

The establishment of a parallel Commission of Inquiry by the
Indonesian Human Rights Commission was seen as an encouraging sign. However, human rights observers (both internationally and within Timor Leste) never believed that relying on Indonesia to provide accountability was a feasible solution, particularly due to the power still exercised by the Indonesian military. Three UN Special Rapporteurs recommended in December 1999:

 

Unless, in a matter of months, the steps taken by the Government of Indonesia to investigate TNI [Indonesian Armed Forces] involvement in the past year's atrocities bear fruit, both in the way of credible clarification of the facts and the bringing to justice of the perpetrators – both directly and by virtue of command responsibility, however high the level of responsibility – the Security Council should consider the establishment of an international criminal tribunal for the purpose.
[16]

 

It was no coincidence that the reluctance within the
Security Council to pursue this recommendation occurred at a time of well‐publicized donor fatigue and sustained criticism of the
International Criminal Tribunals for Rwanda and the former Yugoslavia over the lengthy duration of trials and the lack of recognisable results in those tribunals.
[17]
While the transitional justice goals of an independent Timor Leste were not elaborated much further by the international community than the extracts noted above, it is clear that newer – and what were hoped to be faster and cheaper – hybrid
models of international/national justice were gaining favour, as the parallel developments in Cambodia and Kosovo demonstrate.

At the same time, however, UNTAET's primary task in terms of justice was the creation from scratch of a judicial system and re‐establishment of the rule of law. At a physical level, all infrastructure such as court and prison buildings, books and records had been comprehensively destroyed during the “scorched earth” method employed during the withdrawal of the TNI and militias. A far greater problem was the lack of human resources. All previously serving judges and prosecutors, and the majority of lawyers and court staff, had been Indonesians who had fled the territory.
[18]
Widespread and ongoing lawlessness was a serious problem, which meant that the issue of justice for past atrocities became caught up in the realities of providing present and future justice through the creation of a temporary court system staffed by inexperienced, newly appointed East Timorese judges and lawyers. International judges were initially rejected on the basis that they would undermine local ownership of the justice system, but it soon became apparent that the newly appointed judiciary needed considerable help.
[19]
While the newly appointed East Timorese judges certainly saw themselves as appointed to deal with past crimes,
[20]
the key
UNTAET judicial policy maker at the time has since noted that the East Timorese lawyers were “so inexperienced as to be unequal to the task of serving in a new East Timorese justice system”
[21]
and in particular, that the “prosecution and trial of legally and factually complex criminal offences such as crimes against humanity . . . should not be left solely to largely inexperienced lawyers, however committed they may be.”
[22]

A belated realization of the enormity of the task seems to be the primary explanation for the reversal of the initial policy decision that subsequently saw the focus shift from national empowerment to reliance on international judges to cover the national skills gap. Given the lack of political and financial support for a separate international tribunal, the task therefore fell on UNTAET to combine the retributive and reconciliation goals already mentioned with the additional demand to build the capacity of the fledgling East Timorese judiciary. Yet the shift was not accompanied by a considered assessment of how to ensure a sustainable process.

Prior to the creation of the Special Panels, investigations into the recent atrocities were being undertaken by the UNTAET Human
Rights Unit (HRU) during late 1999, as the pressing tasks of preserving evidence
demanded attention.
[23]
In early 2000 a separate Serious
Crimes Investigation Unit (SCIU) was established to take over the task, with the UN Civilian Police to conduct the criminal investigations. This marginalized many of those involved at the early stage and resulted in the loss of critical continuity in the process. Several months later, responsibility shifted again. When the Special Panels were established in mid‐2000, UNTAET also created a Public Prosecution Service, which included a specialized unit to prosecute serious crimes.
[24]
At this point, the SCIU was transferred from the HRU to the responsibility of the international General Prosecutor. In contrast to the HRU, the initial personnel brought in to staff the SCIU have been widely criticized for their failure to involve East Timorese in their work, in particular some of the key national human rights organizations who had extensive documentation and information about the violations. Unlike the new SCIU staff, many HRU officers were recruited by the UN Office of the
High Commissioner for Human Rights from international human rights organizations and had both local language skills and long‐standing connections with local NGOs, which were lost once the responsibility for the investigations was transferred. The new investigators were either unaware of the level of expertise available within the community, or from an intended impartiality were suspicious of offers of assistance.