Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (34 page)

During the Indonesian occupation the East Timorese population had little chance to develop skills which might encourage their desire and ability to gain independence. For twenty‐four years the
Suharto military dictatorship had imported Indonesians as senior government officials, police, high school teachers, health workers and the like, all of whom departed in the trail of smoke left by the military. When
UNTAET was established there was only a handful of poorly trained East Timorese lawyers with little or no experience, no laws, no courts,
no police force, no national military, no government departments, a few East Timorese doctors, no system for garbage collection, taxation or telephones.

While the
Serious Crimes Unit was being established, employing mostly United Nations international staff, a national system of justice was being put together from these scant raw materials.
UNTAET decided to select and employ East Timorese judges, prosecutors and defense counsel to undertake roles in the courts, despite their almost total lack of experience. It soon became apparent that this fledgling institution was struggling to deal with new crimes being committed. This gave rise to the question of what should be done with the thousands of lesser criminal offenses which had been committed during the conflict.

The caseload for 1999 alone involved thousands of perpetrators of “less serious crimes”. This would impose an overwhelming burden on the already struggling justice system. However, ignoring these cases also presented a significant danger, particularly in the context of so much anger and resentment among local populations. A major challenge threatening the fragile peace was how to reintegrate those who had been involved in the violence and fled to West Timor back into their communities. In East Timor most of the non‐Indonesian lesser perpetrators had come from the same villages as their victims. The future would involve them living together and facing each other on a day‐to‐day basis. Many observers predicted that, as more refugees returned from West Timor, those who earlier had committed these “lesser crimes” while protected by Indonesian military power, would themselves become victims of payback violence. If this eventuated as expected it could destabilize the fragile peace and all efforts and expenses spent on reconstruction would be wasted.

In August 2000 the National Congress of the umbrella group representing all major political parties which had supported independence passed a unanimous resolution supporting the establishment of a “truth and reconciliation commission”. Following this, a steering committee was established, consisting of nine representatives of East Timorese groups, assisted primarily by the Human Rights Section of
UNTAET.
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The steering committee conducted consultations in each of the thirteen districts of East Timor, some at the district level, others meeting with sub‐district or village communities. The results of these consultations, in broad terms, were the following:

• Communities wanted an investigation of the truth of what had taken place and who was responsible. This should include not only crimes but also issues such as informers who had harmed their communities by collaboration with the Indonesian military, which had led to disappearances and other violations.
  

• Those most responsible for the planning and implementation of the programs of violence and perpetrators of the most serious crimes should be arrested and tried in the courts.
  

• Those involved in lesser crimes need not face a court, but they should face their community members and the victims of their acts.
  

• Traditional systems of justice should be involved in any proposed program. However, these systems had been greatly weakened by the Indonesian occupation and were not designed to deal with large‐scale abuses.
  

• An investigation of the truth should include 1999, the Indonesian military occupation and the civil war of 1974–76. However, there were significant fears that opening up the events of the civil war might lead to instability and a resurrection of old hostilities.
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Following the consultations the steering committee held a number of workshops and meetings over the following months at which the policy and form of a truth and reconciliation commission were discussed and a proposed structure drafted. Regulation 2001/10 established the East Timor Commission for Reception, Truth and Reconciliation or CAVR (from the Portuguese equivalent).
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The Commission was given a two and a half year mandate, later extended later to a total of 39 months, and commenced its operations in April 2002. Its objectives included the following:

1. 1. To inquire into and establish the truth regarding the nature, causes and extent of human rights violations that took place between April 1974 and October 1999.
   

2. 2. To assist victims, promote human rights and reconciliation.
   

3. 3. To support the reception and reintegration of individuals who had caused harm to their communities by the commission of minor criminal offences and other harmful acts, through the facilitation of Community Reconciliation Processes (CRPs).
   

4. 4. To compile a Report which would include its findings, refer matters to the Office of the General Prosecutor where appropriate, and make recommendations to the
   government.
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The innovative system of CRPs was designed to provide an alternative to dealing with the thousands of lesser crimes in the formal justice system. Providing a mechanism for dealing with these crimes at the community level was intended to provide a cheaper, faster, less complicated process focused on repairing community relationships and settling residual anger. The following typical example was envisaged:

A perpetrator who burned houses returns from West Timor, feeling vulnerable and afraid. He approaches the CAVR's local representatives and provides them with a statement including admissions of his actions. This statement is forwarded to the Office of the General Prosecutor (OGP), which decides whether it is appropriate to be dealt with by CRP instead of prosecution. If approved, the CAVR establishes a five‐person panel in the community affected by the crimes. The panel conducts a public hearing at which the perpetrator admits his wrongs and apologizes. Community elders and spiritual leaders attend and incorporate traditional practices into the hearing. Victims are able to address and question the perpetrator directly, community members also contribute and a decision is made as to what the perpetrator needs to do to be accepted back by the community. If he accepts this offer, and completes any required acts he will receive full immunity from future prosecution.

The formal mechanisms covering this process were set out in Part IV of the Regulation: The steps set out in this section are:

The statement must include a full description of the acts which the Deponent wishes to be taken into account and an admission of responsibility for these acts. The acts must have been committed in the context of the political conflict. The Deponent must request a CRP hearing, designate which community the procedure should take place in, and renounce the use of violence to achieve political ends. The Deponent will be informed that a copy of the statement will be sent to the Office of the General Prosecutor (OGP) and that its contents might be used against him in a court of law. After providing this statement the Deponent receives a temporary stay of prosecution for the acts declared, so he cannot be arrested while the process is ongoing.

This committee will make a preliminary assessment and recommendation as to whether the acts disclosed are appropriately dealt with by a CRP. In deciding this the Committee will take into account the nature of the crime, the total number of acts, and the Deponent's role in their commission. Those who organized widespread or systematic violence will be excluded at this stage. Schedule 1 of the Regulation cites theft, minor assault, arson, killing of livestock and destruction of crops as examples of appropriate cases for CRPs. It also states that “in principle, serious criminal offences, in particular murder, torture and sexual offences, shall not be dealt with in a CRP.”
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The Statements Committee may decide that a matter is not appropriate to be dealt with by a CRP, and inform the Deponent that the Commission has decided not to proceed. However, all statements received by the CAVR must be forwarded to the Office of the General
Prosecutor.

The facts in the statement will be checked with other files, to ensure that he is not wanted for other more serious offences, and that the Deponent's account accords with other records. The OGP may decide to exercise its exclusive jurisdiction over serious criminal offences, and retain the statement of the Deponent. Alternatively, the OGP may return the statement to the CAVR with an indication that there is not an intention to exercise this jurisdiction and the case may proceed by way of CRP.

The hearing will be presided over by a Panel, consisting of local leaders and chaired by a Regional Commissioner of the CAVR. The Panel must have appropriate gender and cultural representation. In practice, traditional elders, church leaders, representatives of local women's and youth groups are often chosen to be Panel members. At the hearing the Deponent will read his statement publicly. An opportunity must be given for victims and community members to express their opinions. The Panel should then take the wishes of victims and community members into account when formulating appropriate “acts of reconciliation” for the Deponent to carry out in order to be fully accepted back into the community. If the Deponent agrees this is then recorded as a Community Reconciliation Agreement.

If at any time during the hearing “credible evidence” that the Deponent has been involved in the commission of a “serious criminal offence” is raised, the hearing should be adjourned and referred back to the
OGP.
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After the agreement is registered with the appropriate court, and the Deponent completes the required acts of reconciliation he receives full immunity from criminal and civil liability arising out of the actions he has admitted to.
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Although the Community Reconciliation Procedures concept was an exciting new idea which held great potential, at the time the Regulation was drafted it was uncertain whether it would be able to be practically implemented. Was this an important step forward, or another “brilliant” idea influenced by foreigners' academic hyperbole, which would find its way into the already overcrowded trash bin for reconstruction programs? The practical task was to formulate a new, untested procedure which had strong connections to both traditional practices and the formal legal system, but would need to be relatively simple, logistically possible and involve entire communities across the territory.

The district programs of the CAVR were completed on March 31, 2004. In general the Commission has been highly commended by international observers, senior government officials, and local leaders for having made an extraordinary contribution to reconciliation in the territory, far exceeding initial expectations. A fundamental aspect of this success was the CRP program. In early 2004 the United Nations Development Program conducted a study of the CRP program, based on over 70 interviews. In his Report of this assessment Piers Pigou concluded:

 

In terms of impact, there is a widespread feeling that the CRPs have definitely contributed to building social cohesion and relieving tensions in many places . . . There is broad acknowledgement from victims and deponents that the Commission played its neutral role with considerable dexterity. When compared with the formal justice system, the CRP is seen to be relatively quick and a visibly just resolution of the problem. In addition it expedites the possibility of returning to normal life, which is important in a context where violence is regarded by some as a legitimate problem‐solving mechanism.
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Perhaps the greatest evidence of this success is the level of participation by communities. At the planning stages a goal of 1,000 CRP cases had been established, but this was considered optimistic. At the close of the program the initial goal had been exceeded by more than 50 percent.

The CAVR Final Report, which was made available to the public in March 2006, summarized the results of the CRP program as follows:

• The Commission received a total of 1,541 statements from Deponents requesting to participate in CRP, all of which were forwarded to the OGP.
  

• Cases involving 1,371 Deponents were successfully completed through CRP hearings.
  

• The OGP did not grant approval for 85 cases to be proceeded with by way of CRP. These cases were retained by the OGP.
  

• Thirty‐two cases were adjourned during the hearing because credible information came to light, which indicated that the Deponent might have been involved in a “serious criminal offence”, or because communities refused to accept the Deponent.
  

• These figures show that nearly 90 percent of all cases received proceeded to completion. The remaining 10 percent were cases where the Deponent did not attend the scheduled hearing, the hearing was adjourned, or the OGP did not consent to them proceeding by CRP.