Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (31 page)
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Authors: Naomi Roht-Arriaza
The international aspects of the Special Panels seemed to attract no discernible advantage over a fully integrated national process. Likewise, they did not produce the benefits of local relevance; instead, the aspects of the system that had barely been touched by the benefits of internationalization – namely the defence and judiciary –only belatedly received long overdue resources, and then at the cost of making the whole project more international, not more hybrid, as it did not lead to greater integrated involvement by East Timorese staff.
The
Special Panels for Serious Crimes in Timor Leste therefore blur the lines between international and national efforts to prosecute serious human rights violations. They offer both hope and disappointment to those who desire to locate the new model of mixed tribunals still within the context of the teleological drive towards increased “internationalization” of accountability for human rights violations. They bore the weight of international expectations, but were faced with national realities; yet those same national realities are no longer acceptable excuses. Depending on the degree of political constraints and imperatives, hybrid courts can both represent international progress and conversely a retraction from international justice. It is exactly these contradictions that provide the adaptability and appeal of hybrid approaches to justice for international crimes, yet they also carry their own set of dangers.
The fact that Timor Leste's Special Panels were grafted onto the new national court system, rather than being created as a separate institution was due more to the coincidence of circumstances than any deliberate design as to whether they should have been primarily national or international in character. UNTAET was already in the process of building a new national judicial system from scratch, so it did not make any sense to create an entirely separate institution requiring duplication of scarce personnel and resources. However, the Panels' position within the ordinary court structure meant that they suffered many of the same teething problems and lack of support that affected the entire judicial system. The only way to remedy this was to increasingly treat the Special Panels as a separate institution, which contradicts much of the rationale behind their establishment. By way of contrast, Sierra Leone's Special Court arose from a national request, yet the UN had the relative luxury
of being able to consider the concept and design an institution with greater clarity than in Timor Leste, as it was not bound by the same national imperatives. Within Timor Leste, the CAVR's independence from other institutions, and the time taken to consult and plan for its establishment, set it on a far stronger base.
Furthermore, the demands of providing speedy, efficient and fair prosecutions in a post‐conflict environment are often quite different from the demands of rebuilding a justice system. Building capacity takes significant time and patience, and necessarily involves some mistakes as well as slows down the substantive work. Surely both need to occur together, and both are necessarily resource‐intensive projects. On the one hand, there has been an increased focus on the importance of giving priority to
national rule of law development after conflicts, and while this attention seems to be occurring mostly within policy and donor organizations, it is slowly spreading to planners of UN peace operations. On the other hand, the international criminal justice and human rights movements have been successful in making accountability for atrocities an imperative after conflicts. A hybrid tribunal of some sort does have the potential to become a bridge between national and international responses, but this may not always be possible, and requires careful forethought about the national and international contexts, and their compatibility with the specific national and international objectives. The tensions between the need to go fast and slow, to look to the past and the future, to rebuild while still trying to understand why it fell apart, must all be grappled with in all transitional justice projects. While Timor Leste's attempts at justice have only seen limited success, their coexistence with the CAVR at least means that the trials – be they national, international or something in between – are not expected to bear this burden alone.
[1]
Opening statement of the Deputy General Prosecutor for Serious Crimes, Jean‐Luis Gillisen of Belgium, at the commencement of the trial in the
Joni Marques
case on July 9, 2001 (transcript on file with author).
[2]
Prosecutor
v.
Joni Marques and Others
Case no. 9/2000, Special Panel of the Dili District Court, judgment, December 11, 2001, paras. 979–80.
[3]
As East Timor changed its name to Timor Leste on independence, the new name will be used for consistency as much as possible.
[4]
Although informal justice initiatives through customary forms of dispute resolution have also occurred, they are beyond the scope of this paper.
[5]
For detailed discussion of Sierra Leone, see Chapters
1
and
2
. Generally, see Suzannah Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, (2001)
Criminal Law Forum
, 12, pp. 185–246.
[6]
A Security Council Mission was shocked by the level of destruction on their visit to the territory soon afterwards:
Report of the Security Council Mission to Jakarta and Dili 8 to 12 September 1999
, UN Document S/1999/976, September 14, 1999.
[7]
UNTAET was created by Security Council Resolution 1272, UN Document S/RES/1272, October 25, 1999.
[8]
Sidney Jones,
Human Rights and Peacekeeping in East Timor
(April 2001), Draft Paper prepared for the Aspen Institute (copy on file with author).
[9]
For further discussion of the breadth of UNTAET's mandate, see Joel Beauvais, “Benevolent Despotism: A Critique of UN State‐Building in East Timor”, (2001)
New York University Journal of International Law and Politics
, 33, 1101.
[10]
See Hansjorg Strohmeyer, “Making Multi‐Lateral Interventions Work: The UN and the Creation of Transitional Justice Systems in Kosovo and East Timor”, (2001)
Fletcher Forum of World Affairs
, 25, 107; also, Security Council Resolution 1264, UN Document S/RES/1264, September 15, 1999.
[11]
Progress Report of the Secretary‐General on the Question of East Timor
, UN Document A/54/654, December 13, 1999, para. 42.
[12]
Special Rapporteurs' Report
, UN Document A/54/660, “Situation of Human Rights in East Timor”, December 10, 1999, at para. 73; UN Document A/54/726, S/2000/59, “Report of the International Commission of Inquiry on East Timor to the Secretary‐General”, January 31, 2000.
[13]
Ibid
., para. 47. See also Security Council Resolution 1338, UN Document S/RES/1338, January 31, 2001 para. 8.
[14]
See, for example, the compromise resolution of the UN Commission for Human Rights in which it affirmed that “the international community will exert every effort to ensure that those responsible are brought to justice, while affirming that the primary responsibility for bringing perpetrators to justice rests with national judicial systems.” Resolution adopted by the Special Session on East Timor, UN Doc. E/CN.4/S‐4/L.1/Rev.1 at para. 4.
[15]
Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor
, UN Document E/CN.4/S‐4/CRP.1, September 17, 1999, para. 4.
[16]
Ibid
., para. 74.6.
[17]
For a detailed analysis of this issue, see
Report of the Group of Experts on the Effective Operation and Functioning of the International Criminal Tribunal for the Former Yugoslavia and of the International Criminal Tribunal for Rwanda
, UN Document A/54/634, November 22, 1999.
[18]
Hansjorg Strohmeyer, “Policing the Peace: Post‐Conflict Judicial System Reconstruction in East Timor”, (2001)
The University of New South Wales Law Journal
, 24, pp. 171–82 at p. 175.
[19]
For detailed criticism of the decision to place inexperienced East Timorese jurists in such positions without further prior intensive training, see Frederick Egonde‐Ntende, “Building a New Judiciary in East Timor”, (2001)
Commonwealth Judicial Journal
, 14(1), 22. Egonde‐Ntende is a
Ugandan High Court Judge who was initially appointed as a judicial mentor and became one of the first international judges to serve on the Court of Appeal.
[20]
Jones,
Human Rights and Peacekeeping in East Timor
, note 8 above.
[21]
Strohmeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor”, (2001)
American Journal of International Law
, 95, 46.
[22]
Strohmeyer “Making Multi‐Lateral Interventions Work” above note 10.
[23]
For a detailed discussion of this early period, see Jones,
Human Rights and Peacekeeping in East Timor
, note 8 above.
[24]
Regulation on the Establishment of a Public Prosecution Service
(June 6, 2000), UNTAET/REG/2000/16.
[25]
Interviews with Human Rights Unit staff and members of the NGO Yayasan Hak, Dili, September 2003.
[26]
See the discussion in Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, note 5 above at p. 206, quoting the East Timor Action Network.
[27]
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences
(June 6, 2000), UNTAET/REG/2000/15 (UNTAET Regulation 2000/15).
[28]
Strohmeyer, “Policing the Peace”, note 18 above at p. 176; Strohmeyer, “Making Multi‐Lateral Interventions Work”, note 10 above at p. 118. Strohmeyer was the Acting Principal Legal Advisor in UNTAET during the time the Special Panels were created, having worked immediately prior to that in UNMIK in Kosovo.
[29]
See Suzannah Linton, “New Approaches to International Justice in Cambodia and East Timor”, (2002)
International Review of the Red Cross
, 84, p. 93; Strohmeyer, “Making Multi‐Lateral Interventions Work”, note 10 above at 118–20.
[30]
Universal jurisdiction is explicitly asserted in the Regulation that created the Special Panels: section 2.
[31]
UNTAET Regulation 2000/15.
[32]
Interview with international public defenders and UNMISET staff, Dili, September 2003.
[33]
For further detail see “Judicial System Monitoring”,
Justice in Practice: Human Rights in Court Administration
(November 2001), Thematic Report No. 1, Judicial System Monitoring Program
http://www.jsmp.minihub.org/Reports/JSMP1.pdf
.
[34]
Regulation on the Establishment of the United Nations Transitional Administration in East Timor (November 27, 1999) UNTAET/REG/1999/1.
[35]
A notable exception is the ICC defence of superior orders: section 21, UNTAET Regulation 2000/15.
[36]
See
Policy of Justice and Return Procedures
(March 2002), East Timor Serious Crimes Unit (copy on file with author).
[37]
Judge Phillip Rapoza, “The Serious Crimes Process in Timor‐Leste: Accomplishments, Challenges and Lessons Learned”, paper delivered on April 28, 2005, in Dili, Timor‐Leste at the “International Symposium on UN
Peacekeeping Operations in Post‐Conflict Timor‐Leste: Accomplishments and Lessons Learned”.
[38]
The first major investigation was undertaken by the Indonesian Human Rights Commission (KPP‐HAM). The second was a special inquiry established by the UN Commission on Human Rights. Both reports were published on the same day, January 31, 2000 (see above, note 13). Notably, the Indonesian Commission declined to find that a state of war existed and found that there was no evidence therefore of war crimes. For a contrary view, see Suzannah Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, note 5 above at pp. 208–210.