BRIEFING TO THE ANNUAL CONFERENCE OF
THE INTERNATIONAL ASSOCIATION OF PROSECUTORS
HELD IN SYDNEY, 2-7 SEPTEMBER 2001
Dear Fellow Prosecutors of the IAP Conference in Sydney:
My name is Carlos Vasconcelos. I am a Federal Prosecutor at the 1st Federal Court of Appeals in Brasilia, Brazil. I have been a prosecutor for 18 years. From June to September 2000, I served with the United Nations in East Timor (‘UNTAET’) and was acting General Prosecutor and acting Deputy General Prosecutor for Serious Crimes during this period. My office was responsible for the investigation and prosecution of atrocities, such as crimes against humanity and genocide. Through a representative of the Brazilian National Association of Federal Prosecutors (ANPR) who is attending this Congress, I would like to avail myself of the opportunity to share my concerns about the future of the prosecution service in that territory.
Since leaving East Timor, I have grappled with my professional obligations of confidentiality, which have prevented me from speaking out about the situation that I encountered there. However, Amnesty International’s recent outstanding report on the state of criminal justice in East Timor, the latest in a long line of reports decrying the malfunctioning system, has pressed on my conscience. The unstinting work of a brave East Timorese NGO, Yayasan Hak, fresh from challenging the abusive occupying Indonesian regime, and now fighting disturbing encroachments on judicial independence in East Timor, has likewise made me consider my overriding responsibilities. Thus, my concerns for the future of East Timor and the injustice being done by UNTAET compel me to speak out about my experiences in a mission that is supposed to be building judicial institutions that comply with international standards and follow best practice. I do so in the hope that publicity may put an end to such things and that the East Timorese will finally have a system that is worthy of their sacrifices over the years.
As acting General Prosecutor responsible for the prosecution service in East Timor, I faced UNTAET’s Minister of Justice who seemed to have never heard of the fundamental principles of separation of powers and of prosecutorial independence, nor of the importance that the United Nations places upon these principles. She was out of her depth and did not know what she was doing. I am a prosecutor who cherishes these principles and for whom they are the core philosophy around which I have built my professional life for 19 years. My professional reputation is built on these. But in East Timor, from the very start, I noted the absence of a strategy, vision or plan for developing a credible criminal justice system in East Timor. It was all about lurching from one crisis to another and blaming the East Timorese. I personally was not able to perform my professional functions to my own satisfaction due to intimidation, hindrance, harassment, direct and improper influence. I was privy to a series of very serious, but elementary, professional errors that could have exposed, and still can expose, UNTAET and its leadership to international ridicule. I never dreamt that I would encounter such a degree of political interference, incompetence and mismanagement in the United Nations. I would like to highlight several key incidents:
1. Interference with prosecution and investigation strategy
As acting General Prosecutor, I took a carefully considered public position in relation to a certain notorious militia leader who was generally expected to return to East Timor as part of UNTAET sponsored reconciliation negotiations. The Minister of Justice, who was not party to the formulation of this departmental strategy, found the position (which was correctly reported in the media) to be “not true” and instructed a Junior Prosecutor to correct it in the media. This was an attempt to impose political considerations in respect of Serious Crimes, to interfere with our independence, and to force us to disclose our investigating and prosecuting strategy to the press.
2. The illegal warrants of arrest obtained in respect of those suspected of the murder of a United Nations peacekeeper
The open and ultra vires interference of the Minister of Justice in the substantive work of the Prosecution Service is vividly illustrated by the fact that, without even informing me, she instructed a Junior Prosecutor to obtain 10 warrants of arrest of alleged suspects of the murder of Private Manning, a New Zealander peacekeeper, at the border with West Timor.
The said Junior Prosecutor obtained those warrants from a young inexperienced Timorese Judge with no jurisdiction over the matter, without any written request or supporting evidence and by applying improper pressure on the young judge by reference to the originators of the request (the Transitional Administrator and the Minister of Justice).
I learned about the warrants through the media. Having made my own investigations and the appropriate consultations, I addressed the Transitional Administrator and the Minister of Justice. This address took the form of a memo which was in fact a joint address by myself and two highly experienced senior colleagues, which highlighted the irregular circumstances surrounding the issue of the illegally obtained arrest warrants and the serious consequences that flowed from this. We made several recommendations for rectifying the situation, which included withdrawal of the warrants (they had already been transmitted to Indonesia, and were never to the best of my knowledge retracted by UNTAET). For this, I earned the enmity of the Minister.
3. Budgetary matters
The Minister of Justice refused to consider the budget which I had prepared for the offices for which I was then responsible, namely my own office, that of the Deputy General Prosecutor for Serious Crimes and the Deputy General Prosecutor for Ordinary Crimes. She instead used a budget prepared by officials in her own department, without any consultation with me. In accordance with my statutory obligation to report to the Transitional Administrator on budgetary issues (Section 12.4 of Regulation 2000/16), I addressed him with my own budget proposal. This led to further deterioration in my relations with the Minister.
4. Personnel matters
The law of East Timor is clear that the General Prosecutor is responsible for personnel issues within his office. The Minister of Justice’s attempts to interfere with the work of the Prosecution Service included instructions to and consultations with two junior members of my office, both of whom were under my supervision (one had even taken an oath of office to work under my direction). The Minister did so in direct contravention of the law and acted in an underhand manner to undermine my authority. Neither of the two officers had the professional regard or confidence of their colleagues in my office, and one in particular was universally regarded as exceptionally destructive and untrustworthy. At the request of the incoming General Prosecutor, I relocated both officers. This led to another major conflict with the Minister, who had particularly close relations with one of the two officers. She cancelled my decision without having the power to do so and insisted on the physical return of the two officers to my office, thus creating a stressful office environment for all of us.
In August 2000, the General Prosecutor arrived in East Timor and my caretaker role ended. However, he assigned me to be his deputy, in charge of the prosecution of the atrocities. My troubles with the Minister did not end there and she continued her attempts to intimidate me through calling ‘disciplinary’ meetings and complaining about me to my supervisor, the General Prosecutor. When my four-month contract was coming to an end she assumed upon herself the power of a supervisor, which she did not have, in order to give me a negative appraisal. This vindictive appraisal drew entirely on her personal antipathies towards me, directly countering the good appraisal that my own supervisor gave me. As a result, the record of my work in East Timor is an unsatisfactory one.
Despite the invitation of the General Prosecutor to renew my contract and be his (effective) Deputy for Serious Crimes, I decided to leave the mission at the end of my contract. Nevertheless, considering the content and circumstances of the appraisal by the Minister of Justice, in accordance with UN regulations, I filed a rebuttal with the Personnel Unit in order to clear my reputation. Eleven months have passed since I submitted the rebuttal, but despite repeated requests for resolution of this matter, UNTAET is unwilling to review the matter. Despite my drawing this in writing to the attention of UNTAET’s leadership, and even the Special Rapporteur on the Independence of Judges and Lawyers, no steps have been taken to curtail the conduct of the Minister of Justice, to hold her accountable for her actions or to grant me a forum within which I may defend my reputation. Today, almost a year after I left East Timor, the record demonstrates that nothing has improved there. Amnesty International’s recent report shows that the malpractices of the same Minister of Justice and her department continue. Repeated resignations and low morale among the Serious Crimes Unit prosecutors and investigators are widely known. The criminal justice system is being administered in violation of international principles promoted by the United Nations; rather than things improving, the miserable standards continue to flourish. The same Minister of Justice continues to preside over the shambles that is East Timor’s criminal justice system and is not made accountable for her actions. I am therefore obliged to bring to public attention the deplorable situation that I had first hand experience of.
As an experienced and principled prosecutor, I went to East Timor to share my skills with fellow prosecutors there. I have become an object of retribution because I fought to uphold principles that are sacred to our profession. What lessons the East Timorese are learning from the experiences I have had! Particularly disturbing is the fact that all of this occurred in the United Nations, the fountain from which the fundamental principles of human rights set out in the Universal Declaration of Human Rights have sprung from. From the same United Nations have emerged those vitally important instruments by which all prosecutors and judges are rightly guided such as the International Covenant on Civil and Political Rights, and the Basic Principles on the Role of Lawyers and the Basic Principles on the Independence of the Judiciary. From this same United Nations, I have experienced political interference, incompetence and mismanagement on a scale that is literally condemning the East Timorese to a dysfunctional and morally bankrupt criminal justice system.
I have paid the price for believing that the United Nations practices what it preaches. My efforts to redeem my reputation through its internal mechanisms have been in vain. UNTAET is simply not willing to face up to the issues raised in my challenge to the vindictiveness of the Minister of Justice, nor to the many independent and internal reports into its malfunctioning criminal justice system. The East Timorese are being led towards a shamefully compromised system. I therefore seek the assistance of my fellow prosecutors at this meeting in raising this matter directly with the Secretary General of the United Nations and his Special Representative in East Timor. This is not so much about Carlos Vasconcelos, prosecutor from Brazil, as it is about the quality of the institutions, the standards and the practices of the United Nations in a far and distant land. The East Timorese deserve better and we have a responsibility to help them in their quest for justice.
Brasília, 25 August 2001
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news service Added June 28
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System Monitoring Programme (JSMP) Added June 9
JSMP is a new human rights project set up by the East Timorese Jurists’ Association and the Timorese/international organisation La'o Hamutuk. JSMP aims to assist the United Nations Transitional Administration in East Timor, the East Timorese public and the international community by making recommendations for ongoing reform of the fledgling judicial system of East Timor.
The main objective of the programme is to improve the quality of justice provided by the newly established judicial system, and to promote human rights and the rule of law in a meaningful and transparent manner for the people of East Timor through:
27 AI: EAST TIMOR Justice past, present and future Report
added Aug 13
"A mission to East Timor in March 2001 by Amnesty International researchers revealed that the necessary measures have not been taken with the result that law and order is now barely being maintained, justice is not being administered effectively and the human rights of the East Timorese people cannot be guaranteed. The judicial system is only partially established and what does exist is fragile." Amnesty International
26 AI: East Timor: Justice at risk Release added Aug 1
“If the UN pulls out now, without leaving in place substantial support for the fledgling judicial system and other key institutions, its investment over the past two years will be jeopardized. The UN is failing in its primary task of ensuring that the new state of East Timor has protection and promotion of human rights at its core, ... Two years on the East Timorese people are still waiting for justice. If credible trials are further delayed, the demands for an international criminal tribunal will inevitably become more insistent“ Amnesty International
24 Yayasan HAK: Serious Concerns re Judicial Independence under UNTAET
Paper added July 26
" ... in order for the transition to be a meaningful one, the foundations must be laid to ensure that national democratic institutions can perform the checks and balances required for any healthy and vigorous democracy. The establishment of such local institutions capable of upholding democratic values is particularly critical for East Timor to redress the oppression experienced under decades of colonial rule. Securing the basis for an independent judiciary is indispensable in this a historical context. It is only then that the East Timorese can start to overcome a past legacy of impunity and cultivate a culture of the rule of law where the people can trust and rely on the judiciary for the full protection and realisation of their rights. In light of the importance and urgency of this matter we would urge you to raise your concern on this matter with the Transitional Administrator and encourage his administration to act in accordance with international human rights law and democratic principles." Aniceto Guterres Lopes, Director, Yayasan HAK
BD: Calls for International War Crimes Tribunal - A collection of recent reports, articles and news [section on East Timor's Judicial System]