Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (36 page)

Optimally, all Deponents from a particular societal group were dealt with together in a single hearing. In many cases there would be between five and ten perpetrators dealt with at the same time, sometimes more.
The largest hearing, in Oecussi district, involved 55 Deponents and continued over several days. In many cases the focus was not only to reconcile individual Deponents with victims and neighbors, but also to attempt to settle the historical divisions within that particular community. In this way the individual cases of perpetrators became a gateway through which information and opinions on the wider issues of how the conflict had affected the community could flow.

Communities had never spoken publicly about the events and impact of the twenty‐four‐year period of conflict. Through the CRP hearings, rumours were clarified and information was exchanged publicly from witnesses to various events. Despite the gravity of the subject matter, hearings were sometimes also punctuated by laughter. This might seem to be out of place to an international observer accustomed to the solemnity of a court proceeding. However, it was a natural part of the local manner and traditions. The hearings very often included putting perpetrators through long, extremely uncomfortable rounds of questioning and shaming. However they also symbolized the joyous end to community divisions and suffering. Accordingly, CRPs were often followed by a feast and dancing. The goal of the procedure involved moving through the heavy and dark evidence of what had taken place and who was responsible to a community celebration of the resolution of past divisions. This wider symbolic significance was captured by a community elder at the closing of a CRP hearing attended by the writer in November 2003:

 

In 1999 we saw the Indonesian soldiers and militia leave. On May 20, 2002 we celebrated our independence as a nation. But it is only today that we as a community can be released from our suffering from this terrible past. Let us roll up the mat, and this will symbolize the end of all of these issues for us. From today we will look only forward. Let us now eat and dance together, and celebrate the future.
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Initial concerns that perpetrators would be required to undertake acts of reconciliation beyond their capacity were not realized. In fact the opposite was true. Sanctions required by victims and communities were far more lenient than expected and in many cases there was no additional requirement over the participation in the hearing and a full and heartfelt confession and public apology. Examples of acts which the perpetrators were required to make included payments of money or symbolic valuable items, such as traditional beads, providing the victim with an
animal, clothes or other objects, helping to repair the victim's house, and working for specified periods on community projects such as the repair of a school, church or road. The fact that greater compensation and more onerous community service were not demanded is very difficult to understand for international observers who tend to see justice in terms of individual responsibility and concrete and visible forms of punishment. The explanation for this relative leniency is complex and not entirely understood, but interviews with participants indicated that the following factors are involved:

• The desire of communities to settle matters, to delve into the issues deeply, but then leave them behind and not leave hanging threads into the future. They therefore preferred to try to settle the issue of the past, both ceremonially and practically, on the day of the hearing. This was
  also reinforced by the strict scheduling of the CAVR and the desire of staff to complete as many hearings as possible within the limited time of the mandate.
  

• A common realization that following the 1999 violence and destruction the vast majority of East Timorese are still acutely poor and lack the ability to pay any substantial compensation.
  

• Acceptance by all involved that those centrally responsible for all the violence were senior Indonesian military officers and that the East Timorese who became involved were manipulated and promised many things which were not delivered. Victims frequently stated that they forgave the perpetrator because he did things “because of the war” and that everything was different in those times.
  

• Informal “pressure” felt by victims that they should accept reconciliation with perpetrators for the good of their community. The expectation of a possible resolution of outstanding past issues and the desire of the whole community for settlement on the day of the CRP may have overruled the desires of some victims for greater compensation, or to reject reconciliation with
  perpetrators.
  

In many hearings community members expressed disappointment that some of those persons most responsible for the violence in their village did not volunteer to participate. The voluntary nature of the program, together with the lack of capacity of the justice system, meant that these persons gained a practical impunity.

The writer attended one hearing at which the call for all those who had not volunteered to participate became so strong that a hearing was adjourned while someone was sent to the houses of five additional persons who had been involved in burning houses but who had not offered statements to the CAVR, with a request for them to attend the hearing. When these young men arrived, the CAVR Commissioner explained that it was too late for them to participate in a formal way, or to gain immunity through the relationship with the formal legal process, but if they wished to speak to the community they could. Each of the five asked to be part of the gathering, admitted their wrongs and asked forgiveness from the victims. The community and victims asked questions of them and finally indicated they too would be accepted back under the authority of the traditional procedures. Although an unusual case, this is an example of the “soft” border between the legal requirements and traditional practices. As in this case, sometimes situations arose in hearings which were dealt with in various ways by the Panel, not always according to the way the Regulation envisaged, but often with positive results.

At the design stage of the CRPs it was proposed that perpetrators of minor crimes in a community should be compelled to attend a hearing and that decisions of the Panel would be binding on them. However, it was decided that this approach would not provide perpetrators with their fundamental rights. In particular, in reality there was little or no chance that they could receive legal advice before participating. In addition, Panel members had no legal training and therefore should not be given authority to mete out punishments. Accordingly, the procedure was designed on the basis that all participants would do so on a voluntary basis, and that agreement to undertake “acts of reconciliation” would also be voluntary. At that point, however, the agreement became registered as an order of the court and non‐compliance with the order is an offence punishable by a maximum of one‐year imprisonment and/or a $3,000 fine.

The relationship between the CRP process and the Office of the General Prosecutor (OGP) produced a situation where all Deponents provided statements, each of which was by its nature a confession, without any prior legal advice. These statements may be used in the prosecution of perpetrators, and they are advised of this possibility before providing the statement. In reality, a perpetrator is providing
confessional information on the basis of a belief that his case will not be prosecuted, but will be dealt with by CRP. However, in the case of almost 100 Deponents, this belief was mistaken, and their cases were held by the OGP for possible prosecution. Although, in reality, none of these alleged perpetrators were prosecuted by the end of the mandate of the
Serious Crimes Unit on May 20, 2005, this failure to protect the rights of participants should be addressed in the development of any similar future mechanisms.

The strategic plan of the CAVR operated on the basis of teams spending a three‐month period in each sub‐district. Many community representatives felt that this was too short. The flow of statements from the district to the OGP and back took considerable time, which made reaching all villages impossible. The CRP process was a new phenomenon. It was only after communities had experienced a hearing that they realized its potential. Thus many perpetrators became willing to participate only after the hearing had been completed and they had seen the beneficial results. However, by this time it was too late. It is estimated that in excess of 3,000 perpetrators would be prepared to participate in CRP hearings if the program was
extended.
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Despite pressures to extend the program the CAVR decided that it did not have sufficient human and financial resources to continue to conduct CRPs and successfully complete its mandate by compiling a comprehensive Final Report. (The length of the Final Report was in excess of 2,500 pages.) The Commission did offer to assist any other initiative which could be established to continue to hold CRPs or a similar procedure. Although some initial plans were developed for an international NGO to undertake this task, and discussions for a post‐CAVR mechanism to focus on similar work were held, impetus was lost on the formal closure of the program and at the time of writing it appeared that no further CRPs would be conducted. The program had, however, stimulated much interest in the possibility of other forms of alternate dispute resolution which could be implemented at the village level as an extension of the formal justice system.

In almost every CRP hearing there were expressions of serious discontent because those involved in the planning and execution of the
programs of violence – the Indonesian military commanders and militia leaders – remained free and prosperous in Indonesia. This was the major block for deep healing in communities. There was a feeling that all involved in the CRP procedures had undertaken difficult and serious work to try to settle the past, and this gave rise to resentment towards those who were most responsible for this past suffering and yet had not faced up to the results of their actions in any
way.

Although the CRP process was the only reconciliation program specifically established in the Regulation, the programming of the
CAVR has developed an integrated approach to reconciliation in East Timor. The basis of this policy is the belief that reconciliation can only be achieved if practical programs are implemented to achieve each factor required for reconciliation and peace. These factors include:

• Justice for serious perpetrators.
  

• Mending the social fabric binding communities at a grassroots level.
  

• Discovering and publicizing the truth surrounding the violations, so that myths and rumours are dissolved, accountability established, and lessons for the future learned.
  

• Repairing the relationships between national leaders involved in past conflicts.
  

• Restoring as much as possible the dignity of victims, which will assist in reducing community anger and potential reoccurrence of violence.
  

• Providing reparations for victims.
  

The grassroots approach of the CAVR should be understood within the framework of the holistic strategy of the Commission. On March 31, 2004 the district programs of the CAVR were completed. In addition to the 1,371 CRPs, 52 public hearings dedicated to victims had been conducted in most of the sub‐districts, and three‐day healing workshops had been conducted for the worst affected victims at the national office, also providing them with a small sum as symbolic reparation. Community mapping exercises had produced, through participatory processes, 52 community profiles of human rights abuses in communities which had suffered significant violations, 7,927 victim statements had been collected, and eight major thematic public hearings had been held in the capital,
Dili. These results appear to confirm that the CAVR has conducted significantly more grass‐roots programs, and of a more varied approach, than any previous truth and reconciliation commission.

Unlike some other commissions, the CAVR public hearings have not closely resembled court proceedings. In the South African TRC, for example, there were many senior lawyers to drive such a process; Timor Leste had no such resources. The goal of the public hearings was more to present to the public information which had not been previously available, to stimulate discussion and provide a basis for healing, rather than to provide a forum for detailed cross‐examination of witnesses (although questions were asked by Commissioners, and significant information elicited through the public
proceedings.)

The public hearings held in
Dili were broadcast throughout Timor Leste via live television and radio, and each public hearing has been repeatedly broadcast following the event, indicating the widespread interest of the population. Themes chosen were: victims of the conflict, political prisoners, massacres, the role of women in the conflict, its impact on children, forced displacement and famine, the political conflict of 1974–76, the right to self‐determination and the role of international actors. In addition to East Timorese victims and witnesses, international experts on each theme also gave evidence. These experts represented government, UN and civil society positions, and included representatives from the United Nations, Australia, the United States, Indonesia and Portugal.