Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (29 page)

Nevertheless, in both theory and practice there were areas of potential overlap and ambiguity. Many of the crimes that became the subject of
CRPs included serious beatings and intimidation, arson and killing of livestock. Yet many of these same acts, if knowingly committed as part of a widespread or systematic campaign against the civilian population, could well have been classified as persecution or inhuman treatment amounting to crimes against humanity. The regulations that defined the relationship between the SCU and CAVR were drafted so that the reference point in distinguishing between their respective mandates focused on the
crimes
committed rather than the
role
played by the individual. The nature of widespread international crimes depends on the involvement of large numbers of perpetrators, and so focusing on the crimes may mean
that lower level perpetrators of serious crimes are caught between the various processes. Over time, the SCU, in line with the tendency in other international tribunals and after legitimate early criticism, moved towards focusing its resources on investigating and prosecuting those who bear greater levels of responsibility despite the lack of any statutory guidance on this aspect of personal jurisdiction of the Special Panels.

In order to ensure that cases involving serious crimes were not inadvertently taken up by the Commission, all statements received from offenders were to be vetted by the General Prosecutor within fourteen days. This added a significant burden to the existing work of the SCU, which in turn caused frustrating delays for the Commission. A Memorandum of Understanding between the CAVR and SCU was entered into to formalize the relationship between the institutions but was not entirely successful. The Commission noticed a lack of consistency in the decisions taken within the SCU that was attributed to insufficient clarity of prosecutorial strategy on issues that could be covered by the mandates of both institutions. Within the SCU the lack of consistency was explained as depending on which particular prosecutor was tasked to deal with the statement. Mostly, the name of the CAVR deponent wishing to participate in a CRP was simply fed into an SCU database to see if it matched that of a suspect under investigation, rather than handled through a considered legal analysis of the evidence and the possible criminal characterization. Given the range of extremely common name combinations in Timor Leste, this was not a particularly reliable method.
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Finally, the registration of
CRPs was often not possible due to the relevant local district court not being fully operational.

However, the CAVR, both as an independent body and as a non‐prosecutorial mechanism, was able to remedy several of the obstacles facing the Special Panels and SCU. Reconciliation and justice are not just required between those who supported independence and those who did not. Old political differences, united by resistance to the Indonesian occupation, have begun to re‐emerge within a democratic framework, and remain a subject of considerable sensitivity. Although an attempt in 2002 immediately after independence by President
Gusmão to introduce an amnesty law for all past crimes was widely criticized and immediately thwarted within Parliament, the issue has not disappeared entirely from the agenda. While there are still loud calls for justice to be done for the crimes of 1999, there is clearly far more political ambivalence in relation to the pre‐1999 period, particularly those allegations of crimes committed by the resistance movement.
[47]
The fact that the General Prosecutor is East Timorese and formally part of the government has made it more difficult for him to proceed with
investigations against
FALINTIL leaders.
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The SCU was not able to progress with investigations, much less prosecutions, of atrocities that occurred prior to 1999 even where political ambivalence may not have existed, whereas the CAVR conducted several major public hearings into various aspects of the 1974–98 period. Besides the initial violence immediately following the Indonesian invasion, East Timorese often cite such notorious incidents as the 1983
Kraras massacre in Viqueque and the 1991 attack on mourners at the Santa Cruz cemetery in Dili as more deserving of justice than “lesser incidents” during 1999 that have been the subject of trials before the Special Panels.

The complementary nature of the CAVR's design was a creative response to the particularities of the situation and community expectations in Timor Leste. However, it was founded on several presumptions about the operation of both the SCU and the court system as a whole. These included a presumption, which did not become reality until quite late in its life, that the SCU was directed by clear prosecutorial strategy about the prosecution of lower‐level perpetrators of serious crimes and agreed policy between the two institutions about how to resolve the areas of jurisdictional overlap, and furthermore, overly optimistic expectations that the ordinary formal court system would be able to fulfill its part of the process by
becoming fully operational by the time CRPs were being registered.

Throughout the life of both the Special Panels and the CAVR, relations with Indonesia have been ever present. The security situation in general is now relatively stable, with the exception of ongoing occasional border incursions from West Timor. There has not been outright public opposition to the Special Panels' decisions (as opposed to frustration), although that is no doubt due to the fact that many of the supporters of those accused and convicted are not in the territory or are in the minority. Considerable numbers of pro‐Indonesian East Timorese militia leaders and members have remained in Indonesia since they withdrew together with the departing forces. If they were to return, the situation could well change. Yet encouraging them – and with them the thousands of East Timorese living in poor conditions in camps under their control – to return continues to be a political priority for President
Xanana Gusmão, and to some extent for the United Nations, which maintains an ongoing although dwindling military and civilian presence.
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Furthermore, a sentiment often expressed in Timor Leste is that reconciliation will remain limited unless all who are responsible for the atrocities of the past are present.

Indonesia did eventually proceed with trials of its own as it had promised the Security Council in late 1999. In November 2000 a Law on Human Rights Courts was adopted, granting jurisdiction over crimes against humanity and genocide.
[50]
An ad hoc court was established under this law to hear cases relating to Timor Leste, although its jurisdiction was constrained further by temporal and geographic restrictions imposed by Presidential Decrees. Only eighteen individuals were tried as part of this process.

A full consideration of the Jakarta trials is beyond the scope of this chapter, but they have been the subject of extensive criticism by observers.
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Despite the strong recommendations for prosecution contained in the original
Indonesian Human Rights Commission's Inquiry, only a handful of senior military officers were prosecuted; most trials resulted in either acquittals or incredibly lenient sentences. The charges in the indictments were weak, and crucial evidence in support was not offered to the Court despite cooperation from the SCU in Dili that extended to facilitating the transfer of two witnesses. While there was never any formal relationship between the Special Panels and the
Ad Hoc Human Rights Court, the mutual implications of each process may be examined further in future. Fifteen of the eighteen Jakarta defendants were also indicted by the SCU, and four of these were convicted of crimes against humanity and sentenced to several years' imprisonment. Any application of the prohibition on double jeopardy or being tried twice (
ne bis in idem)
contained in the Timor Leste Transitional Rules of Criminal Procedure would require judicial consideration of whether the Jakarta trials were conducted in accordance with international due process standards and an intention to bring the person to justice.
[52]

Furthermore, the significance of the Jakarta trials becomes apparent when contrasted against the lack of enforcement mechanisms available to the Special Panels. Unlike the
ICTY or
ICTR, there was no direct Security Council authorization under
Chapter VII of the UN Charter compelling states to cooperate with the Special Panels or SCU. Of the 440 people ultimately indicted, an estimated 339 remain in Indonesia and effectively beyond the reach of the Special Panels, including the vast majority of those indicted as part of the ten priority cases and all of the highest level accused. Efforts to gain custody of these indictees (and other suspects), many of whom are just across the land border with Indonesian West Timor, focused on overwhelmingly unsuccessful negotiations with Indonesia. A Memorandum of Understanding (MOU) was signed by the former Attorney‐General of Indonesia and UNTAET during 2000, under which each party agreed to cooperate in matters of criminal investigations and witnesses.
[53]
The SCU made numerous
requests to Indonesia, which were all refused or ignored, including on the basis that the MOU was never validly incorporated into Indonesian law. Perhaps most significant was the lack of international pressure brought to bear on Indonesia in this regard.
[54]
Although there is still no extradition treaty between Indonesia and Timor Leste, the SCU registered 263 arrest warrants for indictees with INTERPOL, including against a number of Indonesians.
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These Indonesians include several high‐ranking members of the Indonesian military who were indicted by the SCU for a broad range of crimes against humanity, including murder, forced deportation and persecution. The accused included the former Indonesian Minister of Defense and Commander of the Armed Forces,
General Wiranto. In May 2005, none of these warrants had been executed.

The lack of cross‐border enforcement powers was probably one of the single greatest design flaws in the entire serious crimes process, and it became the main obstacle to its success in the eyes of many national and international observers. This prompted the need to find alternate legal strategies. Although there was some limited internal consideration of a “Rule 61 procedure” as exists at the
ICTY, whereby a public hearing is conducted after the non‐execution of an arrest warrant, this was never taken up by either UNTAET or the East Timorese government. Perhaps even more creative was the filing of a motion by the Deputy General Prosecutor for Serious Crimes, seeking a public hearing before the Special Panels on the
issuing
of an arrest warrant against General
Wiranto in late January 2004 to address concerns about political interference in the judicial process and provide an opportunity for a public airing of witness testimony.
[56]
The inability to proceed with many of these major cases has arguably resulted in the CAVR public hearings, rather than the trials, presenting the main opportunity for the establishment of an historical record. While this may be convenient and a more appropriate role for a non‐prosecutorial mechanism, the lack of coordination between the institutions suggests that this may be more serendipitous than the result of any planned strategy.

Although
President Gusmao explicitly stated his opposition to proceeding against Indonesian senior figures, within the Timorese political leadership the messages were initially more confused, fluctuating between renewed calls for an international tribunal to an increasing consensus to focus on building better security, political and economic relations across the border.
[57]
This culminated in the establishment in March 2005 of a bilateral Commission for Truth and Friendship established by the governments of Timor Leste and Indonesia, to deal with issues related to the violence of 1999. While the Commission is empowered to recommend amnesties for those responsible for human
rights violations and to rehabilitate those who have been “wrongly accused”, it has no mandate to recommend reparations and, according to its terms of reference, its process “will not lead to prosecutions.” As a result, it has been widely criticized by both East Timorese and international human rights groups.
[58]

Although the notion that international justice is of a “better” quality than national efforts is problematic, adherence to international fair trial standards is a useful benchmark. Arguably the area of greatest concern was to bring an international standard of justice to the internationalized process to ensure respect for the rights of the accused. The disparity between the defense and prosecution before the Special Panels described earlier was self‐evident: in the first fourteen trials not a single defence witness appeared. The lack of expertise among both national and international judges, and financial and administrative hurdles to adequate staffing, resulted in confusing judgments where only minimal and contradictory reference was made to international jurisprudence.
[59]
The hybrid composition of the Special Panels and the restrictions imposed by both the UN's recruitment practices and domestic political preferences for Portuguese‐speakers cumulatively resulted in frequent turnover of international judicial staff on short‐term contracts, which led to disruptions and long delays between hearings.

Hybrid justice may be possible at a lower cost than international justice, but it still needs sufficient resources to complete its task. The Special Panels were established by UNTAET without the benefit of prior planning or assessment of the potential financial, personnel and other resource needs. In Dili, UNTAET's attention was stretched in many directions due to its role as temporary governor of the territory; although judges were appointed, some law declared and a courthouse refurbished, the practicalities of running a justice system received little priority. The Special Panels were not initially given any separate budget, but expected to function out of the same small pool of funds established for the entire transitional justice sector.
[60]
Although the Special Panels enjoyed some better facilities than the other national courts, they continued to suffer from inadequate resources. While the SCU accessed general UN funds (“assessed contributions”), the Special Panels were funded out of voluntary contributions.