Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (37 page)

The most dramatic public hearing, held in December
2003 in Dili, covered the theme of the political conflict of 1974–76. This was an extremely sensitive issue as this conflict between East Timorese had involved many of the current national leaders. Witnesses at the previous public hearing on massacres had given evidence not only of widespread atrocities committed by the Indonesian military during the occupation, but also massacres by the Timorese factions in the civil war preceding it. These violations had involved not only opponents in the struggle but also suspected traitors within their own ranks.

Although the scale and severity of violations committed during the Indonesian military occupation was far, far greater than similar events during the civil war, the earlier issues were of fundamental importance for national reconciliation. Violations during the civil war produced ongoing divisions within Timorese society, involving unresolved resentment and hatred from many relatives and children of those killed. Information concerning these events had never before been made public in any way.

As a 39‐year‐old male teacher/villager from Baucau district put it: “Reconciliation is not only for the people on the lower levels, but before that, there must be reconciliation among the elite political leaders because they are the symbols followed by the people. If there is no reconciliation on the level of the elite politicians and they push each other
down, then the people will follow their lead.” Although initially a number of political leaders indicated that they were hesitant to participate, and predicted that opening up these old wounds would lead to national instability, all major national political figures finally attended and gave evidence to the public hearing. In an extraordinary and unprecedented event, leaders from both sides of the conflict took the stand and gave evidence of their participation in the civil war, accepting responsibility and begging forgiveness from victims. The hearing ended in a gathering of these former allies and enemies, arm in arm, many crying, covered live on national radio and television.

A senior government official who had watched the event at home on television stated: “I have been waiting all my life for this day. People were crying and dancing all over Dili, it was a major personal catharsis for me and thousands of others.”
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At the completion of its mandate, on May 20, 2005 the
Serious Crimes Unit had been able to investigate less than half the cases of murder and rape committed in 1999. Although the majority of the perpetrators involved remained in West Timor there were still a significant number who had returned to East Timor but not been prosecuted. In addition, no prosecutions of serious crimes committed between 1974 and 1999 had taken place. As only 1,999 cases were dealt with by the
Serious Crimes Unit these “old crimes” were within the “Ordinary Crimes” jurisdiction of the
Dili District Court. The East Timorese judges of those courts were overwhelmed with current crimes, with a backlog of over 1,600 cases accumulated during the first four years of operations. It appeared unlikely that the older “serious crimes” would ever be prosecuted.

A number of communities had approached the CAVR to request Community Reconciliation hearings for these “old” cases of murder. However, these cases were outside the legal mandate of the CRP procedure, and it was felt that dealing with some instances of murder would confuse communities. As a result a few communities have conducted their own traditional processes to seek settlement for these cases.

The voluntary nature of the CRPs and the scope of the caseload meant that although the program had been much more successful than initial expectations, the perpetrators of thousands of minor crimes had not faced either prosecution for serious crimes or attended CRP hearings. The cumulative result of the various justice initiatives is that:

• All of the “big fish” – those most responsible for the massive human rights violations – remain free in Indonesia. The ad hoc Tribunal has been a “sham” and the
  Serious Crimes Unit indictments cannot reach these “big fish.” Of the eighteen persons indicted and tried by the Indonesian ad hoc Tribunal the sixteen military and police officers were all acquitted. The two East Timorese included were convicted at trial. One of these, the former governor Abilio Soares, was later acquitted on appeal. The only person convicted in Indonesia for the mass violations was East Timorese militia leader Euricco Guterres who received a ten‐year sentence for crimes against humanity.
  

• Most of the “middle‐sized fish”, East Timorese militia leaders and those who killed, raped or tortured, remain free in Indonesia. As above,
  Serious Crimes Unit indictments have no practical effect.
  

• Some of the killers and relatively low‐level militia leaders have been tried and received strict sanctions, up to 33 years imprisonment, through the “Serious Crimes” process of the
  Dili District Court. Many perpetrators, both within and outside East Timor have not yet been investigated.
  

• The CRP process has produced resolution involving perpetrators, victims and communities for approximately 1,400 cases, but several thousand similar cases are unresolved.
  

 

I will forgive people who have persecuted me, and that process that should be done by the suspect confessing all he has done, and depends on an agreement between the suspect and victim. For me, personally, I do not have the right to not forgive those involved. (Female ex‐political prisoner, Dili)

 

 

I think we don't have the right not to forgive, because as a human being I am not beyond mistakes either. (Village head, 41 years old, Maliana district)

 

 

I guess everyone has the right not to forgive his or her enemy, but our country will be stagnant as a result because there is no peaceful and harmonious life. (Women's group member, 29 years old, Liquica district)

 

 

Reconciliation cannot be forced. If I'm still angry and keep my vengeance, then no one can force me. I need time to make peace with myself. (Women's group member, 29 years old, Liquica district)

 

 

If justice, peace, truth and reconciliation existed among the elites then the common people would just have to follow it. (Male villager, 34 years old, Bobonaro district)

 

 

I think I still have doubts about reconciliation. My father was murdered; do you think I can reconcile with the person who killed him? I suggest that the offender be punished. (Male villager, 43 years old, Umatolu, Viqueque district)

 

 

Reconciliation is a truth for everyone, especially for people discovering their existing differences. (Male villager, 27 years old, Aileu district)

 

 

I think sometimes organizations that work for justice in Timor Leste only talk about theories and we never see them realized. (Male ex‐political prisoner, 51 years old, Dili)

 

 

Traditional leaders play fundamental roles in overcoming any problems in the village based on local tradition or culture. (Male ex‐political prisoner, 40 years old, Dili)

 

 

What I know is that the Commission works for two years and after that reports the results to the government. My question is: what will the government do about the cases?

 

Despite significant international attention focused on the issue of gross human rights violations committed in East Timor, it appears that justice for those most responsible is still a distant prospect at best. This represents a serious setback for the worldwide and domestic fight against impunity. The consequences of allowing such powerful figures to commit gross violations without any form of accountability will continue to be felt within and across national borders in years to come.

Inside East Timor the efforts of the
Serious Crimes Unit have brought some measure of justice. Despite this, there remain numerous holes in the justice net, and many perpetrators at all levels of responsibility will never be held accountable for their actions. It is in the context of this somewhat sad reality that efforts are being made to heal the divisions in East Timorese society. This goal is of fundamental importance not only because it is the key to breaking the cycle of recurring violence but also because national unity is the most basic foundation for the task of nation‐building ahead.

The experience of the East Timor Commission for Reception, Truth and Reconciliation shows that it is vital to recognize that in a post‐conflict setting both retributive justice and restorative justice are required. The commanders and serious perpetrators should be in prison; that is not negotiable. But relationships must be restored if peace is to last. It is the tension between individuals and groups, often based on past mistakes, which can readily provide the spark to ignite renewed violence. The tools used to achieve these two interconnected goals must be different if they are to be useful. They must also be based on a thorough consideration of the local environment and a practical plan based on concrete mechanisms. The goals of reconciliation programs are often
limited to trying to convince leaders from opposing sides to dialogue. Although this is important, there is an imperative to seek and implement more creative programs tailored to the specific needs of each situation. These approaches need to recognize that the basis of national reconciliation will often be at the grassroots level.

There seems little doubt that the CRPs and other programs of the CAVR have made a significant contribution to maintaining stability and peace in Timor Leste. Perhaps the major contribution of the program is not the relevance it has to individual cases but its role within communities. The CRP is a formal structure under which divided parties and individuals can meet and share their views. The fact that it has a particular goal, the resolution of individual cases, allows this meeting to maintain a focus, and provides some disincentive to the tendency to drift into meaningless or insincere dialogue. Its flexibility, however, and the incorporation of traditional and spiritual practices allows the extension of a process designed for individual perpetrators and victims to have a much wider effect involving the entire community.

The weaknesses of the CRP program include its inability to compel perpetrators to participate, a potential to undermine individual victim desires in the face of community pressures to achieve resolution, legal uncertainties in some aspects of its relationship to the formal justice sector and due process. However, the fact that there has been a widespread request for the continuation of the program in almost all districts is the most compelling evidence of its value to local communities. Its strengths include achieving finality in a large number of criminal cases in a faster, cheaper, community‐based manner which has allowed more of the truth to be uncovered and provided the potential for victims and communities to express in a real and practical way their desire to leave the past behind.

It would appear that the CRP experience in Timor Leste could provide valuable assistance for other regions struggling to come to terms with a history of abuses and communal divisions. However, the programs of the CAVR were designed to deal with a very specific context. This is perhaps the most valuable lesson for others – that progress towards reconciliation can be achieved by carefully formulating programs which rely on and draw assistance from all available local tools. The formula which worked in Timor Leste involved significant reliance on the “
adat
” tradition, as well as the nascent formal legal system. Strategies drew upon grass‐roots leadership and support from the President and other national leaders. In a staunchly Catholic country, Nobel laureate Bishop Carlos Belo told parishioners that they should “go to the CAVR to confess their sins” and a message of forgiveness based on
religious beliefs contributed to a willingness to reconcile. The CAVR ran programs in the refugee camps in West Timor to provide information and answer questions to potential participants. Many other tools with cultural significance were drawn on. Other lessons are more directly transferable. These include:

• the power of providing a safe setting where victims, perpetrators and community members can openly express their emotions;
  

• the need to incorporate local leaders in the control structures of such processes;
  

• the value of such opportunities being focused on a specific goal, because working together to achieve a solution has its own cohesive dynamic;
  

• utilizing the settlement of the caseload of less serious crimes, which exists after all conflicts, as a tool to promote reconciliation as well as fighting impunity; and
  

• the value of a complementary approach to both serious and less serious crimes.
  

Other lessons learned from the CRP program will be uncovered slowly with greater opportunity to reflect and analyze its lasting effects and value. Perhaps the most important legacy of this experimental undertaking is the challenge it sets for other similar settings. Justice and reconciliation are not two combatants competing for the same resource pie. They are integrally related and inseparable partners in a common enterprise. Neither accountability nor the healing of historically related divisions between groups and individuals will provide lasting solutions unless they are part of an integrated and coordinated approach. Accordingly, resources, effort and innovative effort need to be directed at providing practical, achievable solutions to both challenges simultaneously and holistically. The success of the CRP program has thrown down a new gauntlet – it challenges us to look for new solutions, to enlist new partners, to formulate individual solutions for highly specific problems, and not to settle for the same tired old language and methods, which do little to achieve real progress towards
reconciliation.