Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (33 page)

Patrick Burgess

Truth and Reconciliation

Like the basic principle of supplying medical aid in emergencies, the primary goal of all transitional justice initiatives must be to first avoid the occurrence of additional violations. While preventing further injury we can also try to heal the wounds which have already been sustained. Punishing those responsible for past violations, preventing them from repeating these in the future, providing a clear deterrent message to others who may be tempted to act in a like manner, and providing some solace to victims by demonstrating that those who caused their suffering will also suffer, are of major importance in this context. They are not, however, the complete picture.

Accountability may be the most essential ingredient to healing the past, but it is the total answer to neither justice nor reconciliation. Punishment will not by itself heal the past wounds, which are so commonly the cause of renewed hostilities and the occurrence of new violations. A serious approach to this challenge needs to be holistic. Despite the overwhelming obstacles, significant advances have been made in recent years towards building mechanisms to provide accountability, but there has been far less progress towards understanding or creating practical mechanisms that promote reconciliation.

Many conflicts take place in societies in which the role of formal policing and legal systems has been negligible or, taken at its best, provided a minimal contribution towards law and order; in others they have been the tools of abuse. This does not mean that there is anarchy. In such cultures the relationships between individuals and groups is the fabric which provides order. It consists of a web of forces, both subtle and strong, which regulate behavior, resolve disputes and maintain a dynamic workable solution between competing demands and priorities. Conflicts and wars rip through this tapestry of relationships, which is
responsible for social order, replacing it with frayed emotions, anger, hostility, misunderstanding and suspicion.

The 24‐year‐long conflict and military occupation of East Timor (now Timor Leste) had this destructive effect on the local culture. Divisions were deep; anger was high, violence very near, whether measured from the past or the future. In this context a number of potential mechanisms for achieving accountability were raised. An international tribunal was recommended but not established. A specific domestic tribunal was set up in Indonesia, which is widely described as a “sham.” A mixed tribunal established within Timor Leste has succeeded in prosecuting a significant number of “smaller fish,” but cannot touch those most responsible because they reside safely in Indonesia. Into this mix was added the Commission for Reception, Truth and
Reconciliation (CAVR).

Through an innovative, grassroots approach to reconciliation which has reached across all areas of the new country, the CAVR has provided fresh stimulation to those seeking workable solutions to ending recurring cycles of violence. Achieving this goal requires that the systemic causes of the violence are uncovered and addressed. This involves not only punishment of perpetrators and the establishment of the truth. It also cries out for a practical method to sew together the frayed edges of torn social fabric, or at least bring them close enough so that time can gradually restore them.

The Community Reconciliation Processes of the
CAVR aim to provide a space for perpetrators, victims and communities to seek solutions for reconciliation and reacceptance of those who have committed “harmful acts” to the community. The process involves a mixture of concepts drawn from criminal law, civil procedure, mediation, arbitration, and local traditional and spiritual practices. Although long‐term results are as yet unknown, at the close of this program on March 31, 2004, it appears that the target communities view CRPs, in general, to have been a significant success. Much care needs to be taken in drawing lessons from this program for other situations, as it has been very specifically designed for the local context. However, at the very least, the program has refocused attention on the fundamental need for real mechanisms aimed specifically at reconciliation, and the possibility that although total solutions will always be elusive, partial gains can be made. In the dark and hazy post‐conflict worlds where each step forward is a major achievement such partial gains should be cause for celebration.

East Timor is half an island, with a population of around 800,000. It had been a Portuguese colony for almost 400 years when the Carnation Revolution in Lisbon on April 24, 1974 delivered a policy of immediate release of all colonies. West Timor, the other half of the island, along with the other Dutch colonial holdings in the area, had become part of Indonesia following the struggle for independence in 1945.

The Portuguese decision led to a situation where East Timorese were for the first time faced with the prospect of gaining political power. Two major political parties quickly emerged, dominated by
young, inexperienced figures. FRETILIN favoured immediate independence, and the UDT party wanted a further period under Portuguese influence before independence. A third, smaller party, APODETI, favoured integration with Indonesia. The struggle for power led to a relatively short but bloody civil war. FRETILIN declared themselves victors and the legitimate government on November 28, 1975. Ten days later the Indonesian army staged a massive military operation, invading the territory by air, land and sea in the dawn hours of December 7, 1975.

The participating forces in the civil war had little previous experience or discipline. Consequently, during this period East Timorese factions were responsible for significant human rights violations against other East Timorese and an estimated total of 2,000 persons lost their lives. The violations included massacres of civilians, murdering of prisoners, and purges of party members suspected of betrayal.
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The Indonesian occupation was to last for twenty‐four years, during which time the East Timorese struggle for independence continued, led by the FALINTIL guerrilla force and involving a broad‐based clandestine civilian movement.

During the occupation the East Timorese were subjected to many forms of human rights abuses, and little information of what was taking place was able to emerge, as the territory was generally kept closed to outsiders. East Timorese were unable to exercise their right to self‐determination, to participate in legitimate political activities, or to travel or speak freely. Many suspected independence supporters were taken away by security forces to be tortured and killed. There was
widespread rape and abuse of women. East Timorese children were also taken from the territory by Indonesian military officers. Perhaps most devastating was the tactic of displacing the population from their villages, ostensibly so that they could not provide support to the guerrillas. This led to hundreds of thousands of people being moved to live in areas where there were no means of support. Massive famine and death resulted.
Although no accurate count had been established at the time of writing, it is estimated that one quarter of the East Timorese population, or around 200,000 people died in various ways as a result of the conflict during the Indonesian occupation.
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The events and human rights violations of the civil war and those during the Indonesian occupation were intertwined. Murders and massacres by pro‐independence forces during the civil war led to some East Timorese becoming sympathizers and agents of the Indonesian military during the occupation, due to the fact that they had common enemies.

Allegiances, however, were often not clear. There was much mixing of loyalties, some of it genuine, some less so. The occupation brought to East Timor the same debilitating and hazy mix of collaboration and resistance that Europeans know so well from the experiences of the Second World War. Some supported the occupiers because they believed integration to be preferable or inevitable or because they could gain materially from it. Others demonstrated support but worked clandestinely for the resistance, or ascribed to the goals of independence but secretly gave information to the Indonesian military. There was much changing of sides, according to the situation. This left the legacy of an extremely blurred historical line and a major challenge to reconciliation. However, it also left an understanding of the mixed history of the conflict which can facilitate understanding and forgiveness by East Timorese, but remains difficult to penetrate and understand for outsiders.

The closure of the territory to the outside world began to change in 1992, when a film showing Indonesian troops massacring East Timorese demonstrators at the Santa Cruz cemetery in Dili was smuggled out of the territory. Pressure to give the East Timorese an opportunity to decide their own future began to escalate. The fall of the
Suharto military dictatorship in 1998 brought renewed attention and in January 1999 his temporary replacement, President
Habibie, made a unilateral decision to allow a UN‐run ballot in the territory.

It appears that following this decision a strategy was devised by the Indonesian military forces to turn the situation to their advantage by implementing a program of intimidating the population to vote to remain part of Indonesia. The operational strategy flowing from such a policy involved the formation of civilian militias, which were armed, trained and paid for by the Indonesian military and civilian administration.
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Others who voluntarily joined included many who had been opponents of pro‐independence politics, or whose family members had been killed by independence supporters during the civil war of 1974–76. Members included groups of mostly young thugs and illiterate youths, looking for thrills, power and money. In addition, thousands of young
men were forced to join these groups, although they maintained pro‐independence loyalties. The militias were encouraged and forced to attack pro‐independence supporters during the ballot process, and to provide a clear threat that if the independence option won, those who had supported it would be killed.
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In fact, the belief that the East Timorese population could be intimidated into accepting further Indonesian rule was wrong. On August 30, 1999, more than 99 percent of those registered to vote attended polling booths, despite the presence of militias at many polling sites. Of these 78.5 percent voted for independence. The angry Indonesian military and militias then undertook a massive payback operation. In the weeks following the ballot approximately 1,400 civilians were killed, hundreds of women raped, 60,000 houses and 75 percent of government buildings burned and destroyed. The entire population was displaced. Approximately 250,000 people were forced onto trucks and ships and evacuated to Indonesian West Timor. The rest of the population fled to the forests and mountains.
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Eventually INTERFET, the international force led by Australia, landed in Dili and began to restore order as the Indonesian military and East Timorese militias crossed the border to West Timor, taking with them almost all motor vehicles and consumer goods, thousands of head of stolen livestock, and almost anything else that could be carried. The vast majority of these refugees have since returned to live in East Timor.

A comprehensive account of justice mechanisms relating to the human rights violations committed in East Timor is beyond the scope of this chapter, and is considered in greater detail in Chapter
6
. The following brief summary is provided as contextual background to the establishment of the CAVR.

Following the 1999 violence, the Report of the United Nations
International Commission of Inquiry on East Timor called on the United Nations to “establish an international human rights tribunal consisting of judges appointed by the United Nations.”
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The Secretary‐General did not endorse this, but instead recommended that Indonesia be granted the opportunity to first demonstrate its capacity to bring those responsible to justice. On February 18, 2000 the
Security Council called upon Indonesia to “institute a swift, comprehensive, effective and transparent legal process, in conformity with international standards of justice and due process of law.”
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On August 1, 2001, Indonesian President Megawati Sukarnoputri, by presidential decree, established an ad hoc Tribunal in Jakarta, with a mandate to try those responsible for the serious violations committed in East Timor. However, this court was not given a mandate which would realistically allow it to prosecute those responsible, covering only three of the thirteen districts of East Timor, during only two months of the ten‐month program of violence. The process has been widely criticized as being a “sham”.
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On October 25, 1999, the Security Council, through Resolution 1272, created an unprecedented peacekeeping mission,
UNTAET, with total administrative responsibility for the territory, including the
administration of justice.
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Resolution 1272 also established a “hybrid court”, including the Special Panels for Serious Crimes within the Dili District Court, and a Serious Crimes Investigations Unit, headed up by a Deputy Prosecutor for Serious Crimes. (Every person appointed to this position was a UN international staff member.) These bodies were given exclusive jurisdiction over serious crimes committed throughout East Timor between January 1, 1999 and October 25, 1999. Despite the high level of international outrage, efforts implemented appear to have fallen far short of their goal to achieve justice. Those most responsible, the Indonesian military who planned and executed the operations, remain free and in active military service. Political will for an international Tribunal targeting powerful citizens of the world's largest Muslim nation has waned in the post‐September 11 world. The Jakarta ad hoc process has been an evasion rather than a real effort to achieve justice. The Dili Serious Crimes process has succeeded in prosecuting a number of relatively low‐level perpetrators. The only East Timorese judge to sit on these panels during the first two years of their operation has stated: “speaking as a Timorese and not as a judge I think this system is not fair. Is it fair to prosecute the small Timorese and not the big ones who gave them orders?”
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