Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (30 page)

Should internationalized tribunals be treated with more flexibility and understanding than international criminal courts on the issue of compliance with fair trial standards? There is a risk that international
involvement will just confer “unwarranted legitimacy” on sub‐standard processes.
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It would seem that such an approach simultaneously undermines the original justification for such a hybrid process yet also reflects the realities of post‐conflict situations, leading one observer to warn that “the
UN must not, as it has in East Timor, use the hybrid status of [a] tribunal to justify its failure to meet international standards of judicial fairness and integrity.”
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Interestingly, these problems were foreseen to an extent by the UN Special Rapporteurs who visited Timor Leste in late 1999. In their report to the UN General Assembly they acknowledged the enormity of the task of fully investigating and documenting responsibility for the crimes that had occurred, stating: “[t]he East Timorese judicial system, which still needs to be created and tested, could not hope to cope with a project of this scale.”
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The Special Panels were created not by a national government, but by foreigners acting in its place. Rather than being the result of careful consideration and consultation with the East Timorese community, the process was developed within the UN mission in response to the exigencies of the situation at hand, by reference to a model that had been planned for Kosovo.
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This affected the levels of East Timorese participation in the Special Panels, the accessibility and local understanding of the process, and the extent to which it interacted with other
restorative justice and national political initiatives. However, there seems to be a sense that while prosecutions were international initiatives, they were generally welcomed as consistent with community demands for justice. The problem, initially at least, lay in the practical implementation.

The physical presence in Timor Leste of the Special Panels should have provided a visible sign of commitment to punishing those responsible and restoring dignity to victims. Yet a largely illiterate population, scattered throughout inaccessible mountains with poor communications needed more than a court sitting in the capital. Despite the combined international attention and interest within the East Timorese community, no official public outreach program exists for publicizing or explaining the court's work.
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Whereas all the indictments before the Special Court for Sierra Leone to date have relied exclusively on international offences, in Timor Leste an early lack of clear prosecutorial strategy led to an initial tendency to “undercharge” some accused on domestic individual murder charges, which created misunderstandings of the court's jurisdiction and gave the impression that these cases were either unconnected or not as serious as others.
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While initially there was great
frustration among victim communities and East Timorese NGOs that the Court was too slow and focusing on the “small fry” rather than targeting the leaders behind the human rights violations, several stakeholders noted that this perception shifted significantly after the indictment of General
Wiranto.
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At a general level, however, there was no real contact between victims' organizations and the Special Panels. The management and strategic direction problems within the SCU in its first two years led to a lack of continuity and communication as part of the investigation and evidence gathering process, which caused unnecessary grief for victims and families when this resulted in repeated interviews and even
multiple exhumations of relatives' graves.

Particularly telling on the limits of national ownership of these processes was the controversy which arose after the issuance in early 2003 of the long awaited indictments that contained allegations which provided the macro picture of how the campaign to comprehensively destroy Timor Leste was conceived of, planned, prepared for, executed and covered up by high‐ranking individuals. Yet while community groups and human rights NGOs in Timor Leste and internationally welcomed the indictments, there was a conspicuous silence by both
UN officials in Timor Leste and the national government. The silence was broken by
President Xanana Gusmão, one of the strongest advocates of reconciliation and forgiveness in the name of forging a stable peace, who announced that he believed the indictments were not in Timor Leste's national interest, which depended on good relations with Indonesia. He went on to reiterate that because the SCU was a UN creation, “then the international community must hold the responsibility for administering that justice and organising the structures and mechanisms to that effect.”
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Even more curiously, UN officials in Dili were simultaneously publicly denying responsibility for the indictments, while quietly ordering the then‐Deputy General Prosecutor (herself a UN employee) to reissue the indictments on the letterhead of the Public Prosecution Service of Timor Leste, rather than the UN letterhead upon which all other serious crimes indictments had been issued previously. The UN Mission of Support in East Timor issued a separate press release to that of the Serious Crimes Unit, “clarifying” that:

 

[w]hile indictments are prepared by international staff, they are issued under the legal authority of the Timorese Prosecutor‐General. The United Nations does not have any legal authority to issue indictments.
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While
UNMISET was in the process of winding down its role in Timor Leste, an internal report stated that:

 

[the Serious Crimes Program (SCP)], which has been largely internationally operated is clearly perceived by the Government as the responsibility of the international community. It is also reasonably clear that it is politically and financially convenient to the Government of Timor‐Leste for the responsibility for the SCP to rest with the international community, particularly in the context of Timor‐Leste's continued reliance upon the international community for financial support, and in the face of the emerging realities of the politics of the Indonesian‐Timor‐Leste bilateral relationship.
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Within the upper echelons of East Timorese politics, the Special Panels were simultaneously regarded as not enough like a proper international tribunal, or indeed all too close to one. The hybrid tribunal lurched from a joint national/international enterprise to one in which both the national and international authorities publicly disowned it. The conceptual confusion led to the abdication of responsibility by both parties. Research suggests that broader popular expectations may not accept this denial of national responsibility.

As the international community withdrew further from the control of the Special Panels and SCU, national elite politics seemed to be privileging a particular narrative that not only obscures responsibility for past crimes committed by the pro‐independence resistance, but also protects present and future relations with a large and formerly aggressive neighboring state. Despite their shortcomings, if the Special Panels had been created in a way that ensured greater levels of national political ownership of the process, these considerations might well have dictated developments from the outset. The detailed allegations contained in the indictments that were issued, even if they are never tested at trial, at least provide a formal – although partial – legacy through a record which seeks to contradict the popular revisionism that still prevails within Indonesia that the atrocities were the result of disgruntled East Timorese who opposed independence and a few rogue soldiers who helped them.

Besides the legacy that may emerge through the establishment of an historical record, a more tangible legacy that should rightfully be expected of a hybrid tribunal would include the creation or furthering of a process that is sustainable beyond the inevitably temporary involvement of the international community. As described above, when the first East Timorese judges were provisionally appointed in early 2000, many were of the impression that they would be judging the serious crimes cases from 1999.
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The fact that the Special Panels were created
within
the national court system raised a presumption that they would be part
of a long‐term transfer of skills and an ensuring that the process would be sustainable by national actors once the internationals withdrew. Yet besides the on‐the‐job training and mentoring that the two East Timorese Special Panel judges received, no attempt was made to rotate other East Timorese judges into the Special Panels or to conduct training that crossed over between the jurisdictions. Unless the international involvement is spread throughout the judicial system, as has been the case in Kosovo, the involvement of international colleagues should not be assumed to automatically result in a transfer of skills to the national level. Furthermore, the specialized and high‐profile nature of the Special Panels with their international backing, while co‐located within a struggling national justice system, led to the alienation of those national judicial officials who were excluded from participation. In Timor Leste, the differences in remuneration and appointment processes between national and international judges led to strikes and resentment within the East Timorese judiciary.
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These difficulties reflect a fundamental confusion about where justice for past atrocities fit into the puzzle of a UN peacekeeping operation that was also charged with preparing the country for independence. The tasks of developing the local judiciary and prosecuting serious crimes were all being undertaken by the UN, so the ambiguity was not at first apparent. Yet as the complexity of the longer‐term needs of Timor Leste's justice system became clearer, the international community (through the UN budgetary committee) made it clear that while it was prepared to continue supporting the SCU as part of fulfilling its collective obligations to provide justice for gross violations of human rights, its provision of direct support to a domestic justice system was far more limited.
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By the time UNTAET was handing over to the smaller follow‐on mission
UNMISET, the Secretary‐General admitted to the Security Council that Timor Leste's judicial system was not yet fully functioning and still suffered from inadequate resources and not yet competent personnel, demanding ongoing international assistance for the foreseeable future.
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By the time of UNMISET's conclusion, the situation was not significantly different. The process of building a justice system from scratch is necessarily a long and slow process, which in many ways seems antithetical to the primary goal of speedy, high quality justice.

The Special Panels were neither an independent international tribunal which may have been able to produce more efficient and just results, nor a fully integrated process dedicated to building local capacity throughout the system. Rather than being a hybrid model that strategically combined the best features of national and international tribunals, they have often seemed like a misfit that inherited the worst of both.
The implications of this have been far‐reaching for both Timor Leste's search for justice and the development of international models
of accountability. These are discussed further in the final section of this chapter.

Any evaluation of the Special Panels as a transitional justice mechanism must be seen in the light of the particular contextual factors facing Timor Leste, many of which are unlike other societies in transition. There was a total departure of the occupying forces (and the majority of perpetrators), the lack of a skilled national legal profession, special constraints imposed by the nature of emergency peacekeeping operations, the novelty of a UN transitional administration, and the post‐colonial politics of an emerging nation.

Timor Leste's Special Panels were created entirely under an international umbrella, in the form of a UN transitional administration, but acting in the role of a national government. Structurally, they were localized within the national court system, but they were also just one of several institutions addressing the question of accountability for the past. This fluidity about the status of the Special Panels was both beneficial and constraining. Although the Special Panels and the SCU enjoyed some important “successes” in identifying and punishing a small handful of those East Timorese perpetrators responsible for the atrocities during 1999, the “fragmented accountability” that sees the high‐level organizers and planners of the destruction remain out of the court's reach in Indonesia was an ongoing frustration for all involved.
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Although a benefit of internationalization of such a process should have been to bring the weight of international pressure to bear, the repeated refusal by Indonesia to cooperate with the Timor Leste process, both in terms of access to evidence and transfer of suspects, left the SCU in the invidious position where its most important indictments against senior members of the Indonesian military were unlikely ever to proceed to trial. In the post‐September 11 international environment, where the stability and goodwill of the world's largest secular Muslim nation assumes particular importance, it remains doubtful whether Indonesia will ever be held to account internationally. In February 2005, the UN Secretary‐General established a three‐member independent Commission of Experts to assess the progress made in bringing to justice those responsible for the serious violations of international humanitarian law and human rights in Timor Leste in 1999, both in terms of the Jakarta trials and the Special Panels.
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On May 26, 2005, the Commission
presented its report. It urged the Security Council either to continue supporting the SCU and Special Panels or to create some equivalent mechanism; to specifically investigate the high‐level cases of Indonesian officers in Indonesian courts and, if credible investigations were not forthcoming, to reopen the question of an international ad hoc tribunal. In September 2005, the Security Council asked the Secretary‐General to study the issue again.
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