BACK DOOR Newsletter on East Timor .........home ...... Oct news

The La'o Hamutuk Bulletin

Volume 2, No. 6&7
October 2001

Issue focus: Justice

The entire bulletin with a downloadable printable PDF version, will be available shortly at http://www.etan.org/lh/
Editions in other languages will also be available there. Printed, PDF and online versions contain additional graphics.


CONTENTS:

Part 1
Justice for East Timor?
UNTAET and “Serious Crimes”
East Timor’s New Judicial System by the Judicial System Monitoring Programme

Part 2 (this part)
The Commission for Reception, Truth, and Reconciliation: An Overview
Solidarity and International Justice by Paul Barber
An International Tribunal for East Timor? by Jon Cina
Women and Justice by Kate Halliday

Part 3
Editorial: Time to Get Serious About Justice for East Timor
In Brief
Letter from SRSG Sergio Viera de Mello
La’o Hamutuk Responds: Refugee Return Too Slow, Strategy Still Misguided

Part 4
Supplement: Chronology of Justice and Accountability for East Timor: September 1999 - October 2001


"The Commission has two general areas of activity ... First, it will establish the truth regarding human rights violations that took place between 1974 and 1999, ... the Commission will investigate not only individual cases of rights violations, but also the extent to which the violations were part of a systematic pattern of abuse. ... The CRTR will also examine the role of international actors - such as foreign governments - in its attempt to provide a full picture of why gross human rights abuses occurred. ... Second, the CRTR will assist “in restoring the human dignity of victims,” in part by providing them with the opportunity to tell their stories publicly. It will also help to promote reconciliation amongst East Timorese by “supporting the reception and reintegration of individuals who have caused harm to their communities” by what are deemed as relatively minor acts of violence (such as killing a few livestock or burning one or two houses)." La'o Hamutuk: East Timor Institute for Reconstruction Monitoring and Analysis
See also:

BD: Truth, Reception and Reconciliation
BD: 'Refugees' & Missing Persons / 'Refugiados' e Desaparecido / 'Réfugiés' ou Déplacés
BD: War Crimes & Crimes Against Humanity

The Commission for Reception, Truth, and Reconciliation: An Overview

Contents
What is the CRTR?
Structure and role of East Timor’s CRTR
Some Concerns


What is the Commission for Reception, Truth and Reconciliation?

On 13 July, UNTAET passed Regulation 2001/10, establishing the Commission for Reception, Truth and Reconciliation (CRTR) in East Timor. The Commission has two general areas of activity, both of which aim to promote human rights in East Timor.

First, it will establish the truth regarding human rights violations that took place between 1974 and 1999, while reporting these violations and the factors that contributed to their occurrence. In this regard, the Commission will investigate not only individual cases of rights violations, but also the extent to which the violations were part of a systematic pattern of abuse. Allegations of war crimes and Crimes Against Humanity will thus form part of the Commission’s investigations. The CRTR will also examine the role of international actors - such as foreign governments - in its attempt to provide a full picture of why gross human rights abuses occurred. But the CRTR will have limited resources for investigations. And it will not have the power to bring charges against those who refuse to cooperate, nor to compel testimony or evidence from Indonesia or other national governments.

Second, the CRTR will assist “in restoring the human dignity of victims,” in part by providing them with the opportunity to tell their stories publicly. It will also help to promote reconciliation amongst East Timorese by “supporting the reception and reintegration of individuals who have caused harm to their communities” by what are deemed as relatively minor acts of violence (such as killing a few livestock or burning one or two houses). This will entail holding perpetrators of such crimes accountable to their victims. The Commission will do this through “Community Reconciliation Procedures” (CRPs) by which perpetrators will agree to perform acts of restoration that are meaningful to the survivors and their communities. For example, the crime of burning a house down might require the offender to rebuild that house. The resulting “community reconciliation agreement,” will be registered at a district court, which will ensure acts of reconciliation are proportionate to the original crimes, are carried out, and do not violate human rights. The Commission will refer Serious Crimes, which are ineligible for CRPs, to the General Prosecutor for possible prosecution.

The CRTR is the result of a proposal drafted by a Steering Committee headed by the UNTAET Office for Human Rights, following an initiative from the CNRT Congress. The CRTR Steering Committee was comprised of people from various organizations, including Fokupers, Yayasan HAK, and the Catholic Church’s Peace and Justice Commission, and relevant UNTAET departments. The Committee drafted the CRTR proposal after conducting consultations over several months with civil society in every district.

Truth commissions have become a popular prescription for reconciliation in several post-conflict countries. The establishment of a truth commission is based on the assumption that making the truth public about who did what to whom in the context of gross human rights abuses will facilitate reconciliation in a society trying to recover from war and/or widespread, gross human rights abuses.

One function of a truth commission is to investigate past human rights abuses and produce a comprehensive report, outlining not only individual cases, but also patterns and policies underlying such abuses. In addition to their reports, truth commissions often encourage and facilitate apologies to victims - to individuals and the society as a whole - by perpetrators of atrocities. In this regard, they help increase the likelihood that former adversaries will coexist peacefully. In South Africa, for example, the Truth and Reconciliation Commission included a restorative justice program, whereby perpetrators performed work for victims; the TRC also proposed a reparation program. Moreover, truth commissions can provide recommendations for measures to prevent the recurrence of human rights violations.
 

Structure and role of East Timor’s CRTR

A Selection Panel will appoint seven persons “of high moral character, impartiality, and integrity” (at least 3 of whom will be women) as National Commissioners to head the Commission. Four political parties that existed prior to Indonesia’s invasion (Fretilin, the UDT, Kota, and Trabalhista), the NGO Forum, the Women’s Network, the Catholic Church, the Political Prisoners’ Association, the Association of Families of the Disappeared, UNTAET’s Office of Human Rights Affairs, and the Transitional Administrator have each appointed one member to the Selection Panel. There is supposed to be one pro-autonomy representative, but pro-autonomy groups have thus far refused to cooperate in this matter.

The CRTR will operate for two years with the option of a 6-month extension. The Commission will have six regional offices staffed by Regional Commissioners of similar personal and professional qualities as the National Commissioners.

The CRTR proposes to have 270 East Timorese staff, with a budget of nearly US$4 million. They hope to take 10,000 statements from survivors of atrocities, an impressive goal. For their national office, they plan to rehabilitate the Comarca Prison in Dili, where many East Timorese political prisoners were tortured during the Indonesian occupation. The ex-prison will become a museum and resource center run by the Association of Ex-Political Prisoners after the CRTR ends in two years.

Although the return of East Timorese refugees in West Timor is currently not seen as an objective of the Commission, this goal informed many of the discussions that led to the CRTR’s creation. As Pat Walsh, coordinator of the CRTR’s Interim Office on behalf of the UNTAET Human Rights Unit, explained to La’o Hamutuk, one of the underlying ideas of the Commission is to provide an incentive for refugees in West Timor to return home. Many of them are militia members who fear reprisals when they return to their communities. Those taking a lead role in establishing the CRTR hope that militia members will see the “Community Reconciliation Procedures” as an acceptable mechanism of justice, one that will ensure the safety of returnees by satisfying the demand of individuals and communities for accountability for minor crimes. Others involved in refugee assistance, however, do not believe the CRTR will help in this regard, and fear it may even be counterproductive. One of the CRTR’s more unique factors in comparison to similar commissions in other countries is the nature of the conflict in East Timor. Because the gross human rights abuses were the result of what was first and foremost an international rather than an internal conflict, the vast majority of those guilty of war crimes and Crimes Against Humanity - members of the Indonesian military and Indonesian government officials - are outside of the country. And for East Timorese members of TNI-directed militia groups in 1999, most of those accused of the worst crimes remain in Indonesia to where they fled following their participation in the post-UNAMET ballot campaign of terror. In any case, such individuals have little incentive to cooperate with the CRTR as they are not eligible for participation in the “Community Reconciliation Procedures.”

While the Commission has the authority to request and gather information from witnesses, government officials and people in other countries, it does not have power to compel anyone outside of East Timor to cooperate. Consequently, those most responsible for gross human rights violations from 1975 to 1999 will not participate in the truth-telling process. Because of this, the Commission’s work will probably do little to facilitate reconciliation between the peoples of East Timor and Indonesia - the main protagonists in the conflict.


Some Concerns

There are concerns that the United Nations, donor governments, or even the government of East Timor will use the existence of the CRTR as an excuse for not moving forward to prosecute those who committed Serious Crimes, even though such crimes are outside the scope of the Commission. A new government, faced with budgetary problems as well as daunting demands and pressures (national and international) might be tempted to lower the priority of criminal prosecutions, especially in light of limited resources and experience.

In its July 2001 report on Justice, Amnesty International welcomed the provision in the CRTR regulation that empowers it to refer Serious Crimes cases to the General Prosecutor’s office. Amnesty, however, “seriously doubts whether the capacity currently exists to process these cases effectively or in a timely fashion.” In this regard, it fears that the CRTR could absorb resources that might otherwise be available to the judiciary, potentially undermining the process of justice, although reducing the court caseload is one of the arguments used to justify the Commission. Thus, Amnesty recommended not establishing the CRTR until the judicial system has the capacity to prosecute cases referred by the CRTR “in processes which conform to international standards.”

Meanwhile, UNTAET and East Timorese political leaders have been conducting negotiations with militia leaders who are suspected of having committed Serious Crimes - even Crimes Against Humanity - with the hope of facilitating the return of more refugees from West Timor. The relationship between these negotiations and the CRTR (as well as the Serious Crimes Unit) is unclear. Not surprisingly, some militia leaders in West Timor have asked for amnesty. And already, some major political leaders in East Timor have recognized the “practical value of amnesty.” Such words increase worries that the future government might use the CRTR as a substitute for justice.

In response to such concerns, UNTAET and ETTA officials have promised that the CRTR is not a substitute for justice, and that there is no amnesty for Serious Crimes. In fact, they argue, the CRTR is complementary to the justice process: By creating an official record of human rights violations, the Commission will help facilitate accountability.

Currently, there is little grassroots understanding of the CRTR and its mandate - especially among the refugees remaining in West Timor. As Pat Walsh admits, “There is a need for more public information and education about the process. There’s an information vacuum on the other side of the border.” The CRTR will have to ensure that all sectors of East Timorese society are aware of its purpose and rationale if it hopes to attract their meaningful participation and have a real impact on reconciliation.

Recently, the CRTR’s Interim Office held meetings with pro-autonomy leaders to explain the rationale behind the CRTR. As Francisco Guterres, a member of the Interim Office, states, “It is important that militia members see the CRTR furthering their long-term interests. Without their participation in the reconciliation process, they will be isolated from their communities.”

If the CRTR is to attract refugees in West Timor to return, it will need cooperation from higher-level militia members who control the movement of the refugees. Most militia leaders, however, will not see the Commission as serving their interests, as they were not involved in developing it. Given that the Commission will be collecting reports and stories in a process not governed by laws of evidence, militia members, especially those accused of the most serious offenses, could fear that the CRTR process might actually lessen the possibility of their receiving a fair trial.


See also:

BD: Truth, Reception and Reconciliation - A collection of recent information, reports, articles and news

BD: 'Refugees' & Missing Persons / 'Refugiados' e Desaparecido / 'Réfugiés' ou Déplacés / - A collection of recent information, reports, articles and news

BD: War Crimes & Crimes Against Humanity - A collection of recent press releases, petitions, articles and news

BD: Military and political aid to Indonesia - A collection of recent reports, articles and news

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Ideas for Action in achieving Justice for East Timor:
"In the Philippines, the Asia-Pacific Coalition for East Timor (APCET) has suggested that a People’s Tribunal (unofficial prosecutors presenting evidence to a panel of experts who are not legal judges) could be a good way to highlight the issues, develop the evidence, and create momentum toward an official legal court. ... The next session of the Commission [UN Commission on Human Rights], in March/April 2002, will also require concerted lobbying to ensure that pressure for justice is maintained. ... The possibility of preparing legal cases against leading generals and using the courts of countries, such as Belgium, which have shown a willingness to exercise universal jurisdiction over Crimes Against Humanity, is an idea which the movement must seriously consider. Solidarity groups are likely to have the chance to discuss this and other possible strategies at a conference on impunity in Amsterdam at the beginning of December." Paul Barber, TAPOL, the Indonesia Human Rights Campaign
See also:

BD: War Crimes & Crimes Against Humanity
BD: Calls for International War Crimes Tribunal
BD: Military and political aid to Indonesia

Solidarity and International Justice

By Paul Barber, TAPOL, the Indonesia Human Rights Campaign
 

“East Timor will not follow the path of those in Nicaragua or Mozambique who believed that international activist support was no longer important once independence had been achieved. We have waged East Timor’s struggle with the help of concerned people from around the world, and we will continue to remember and rely on you in this new phase of East Timor’s history.”
-- José Ramos Horta, letter to Utrecht International Solidarity Conference, May 2000
 

Since the scorched-earth devastation of East Timor in September 1999, the international solidarity movement has placed a high priority on supporting East Timorese demands for an international tribunal to try those responsible for the Crimes Against Humanity committed by the Indonesian military and their militia proxies. Because diplomatic considerations have often constrained East Timorese leadership from speaking out, and UNTAET has failed to argue the case for a tribunal, the voices of global activists along with those of East Timorese NGO and student activists have often been the loudest.

In May 2000, activists from Europe, the United States and Indonesia met in Utrecht, Netherlands, and reaffirmed that they would encourage efforts to hold the Indonesian military to account for their crimes and call for a special international tribunal for East Timor. As a result, the International Federation for East Timor (IFET) and over 80 organizations and human rights campaigners from around the world wrote to UN Secretary General Kofi Annan in July 2000. Similar letters were sent to national governments and to the European Union.

Earlier, the intensive lobbying of U.S. activists was key to enacting a law that prohibits the financing and training of the Indonesian military by Washington (the Leahy amendment). The legislation blocks the U.S. from resuming bilateral military co-operation until those responsible for violence in East Timor are brought to justice. The law is still in effect, although ETAN and other U.S. activists must continually defend it against Bush Administration attempts to restore the U.S.-Indonesia military-to-military ties.

A pattern has evolved whereby Indonesia has been doing just enough to prevent the establishment of an international tribunal while actually doing little to advance genuine justice. Foreign governments eager to resume military cooperation with Jakarta, or reluctant to act effectively to advance justice, are all too keen to accept symbolic or minor developments in Indonesia as progress.

President Megawati has continued this tactic. As part of what appears to have been an attempt to encourage the U.S. to restore military ties, she recently revised the jurisdiction of Indonesia’s ad hoc court for East Timor to include crimes committed in April and September 1999, instead of just those committed in the post-ballot period. At the same time, she restricted the court’s jurisdiction to crimes committed in Dili, Liquiça and Suai. Although this step has little substance (no prosecutions have begun, making the court a mere shadow), many governments once again are saying that Jakarta deserves even more time to prosecute those responsible for atrocities in East Timor.

Many international activist groups believe that the tribunal should have jurisdiction over all war crimes and Crimes Against Humanity committed in East Timor since the Indonesian invasion in 1975, including complicity and command responsibility. Although the specific jurisdiction and mandate of any international court will inevitably be a product of political compromise, most advocates still believe that all those who are guilty should be held accountable.

Media work by solidarity groups has played a part in keeping the possibility of an international tribunal included in press coverage of the justice issue. Solidarity activists have also undertaken important work at the UN Commission on Human Rights in Geneva. The 2001 Chairperson’s Statement on East Timor (expressing the consensus of interested governments), for instance, while far from perfect, was better than the one in 2000. Although this year’s statement did not mention an international tribunal, it did leave open the option of international action. The next session of the Commission, in March/April 2002, will also require concerted lobbying to ensure that pressure for justice is maintained. [emphasis BD]

The international solidarity movement has worked closely with church groups, which - together with Bishop Belo - have launched important initiatives demanding an international tribunal. In June 2001, 45 church aid agencies and human rights groups repeated the demand in a statement issued in Canberra at the international donors’ conference on East Timor.

East Timor support groups in Asia are also pressing for a tribunal. The Free East Timor Japan Coalition recently made this a priority for its campaigning, focusing its efforts on the Japanese government and the members of the UN Security Council. In the Philippines, the Asia-Pacific Coalition for East Timor (APCET) has suggested that a People’s Tribunal (unofficial prosecutors presenting evidence to a panel of experts who are not legal judges) could be a good way to highlight the issues, develop the evidence, and create momentum toward an official legal court. IFET groups in other countries also continue to make the justice campaign a top priority.

In the United States, the East Timor Action Network (ETAN) is advocating for a congressional resolution supporting an international tribunal. ETAN facilitated a lawsuit in which six 1999 torture survivors and relatives of murder victims sued General Johny Lumintang, former TNI Vice-Chief of Staff. In September, a Washington judge awarded the plaintiffs US$66 million in damages (which they will probably never get). The judge decided that “Lumintang had ‘direct’ responsibility for these acts: as the third-ranking member of the Indonesian military, he along with other high-ranking members of the Indonesian military planned, ordered, and instigated acts carried out by subordinates to terrorize and displace the East Timor population, to repress East Timorese who supported independence from Indonesia, and to destroy East Timor’s infrastructure following the vote for independence.”

In the Netherlands, human rights and pro-democracy groups have launched a major campaign to highlight the scourge of impunity in Indonesia and encourage bringing leading generals responsible for atrocities in Indonesia and East Timor to justice.

The solidarity movement has maintained its position and strategy in the face of uncertain international political will. The movement must continue to ensure that demands for international justice do not disappear. Without such demands, there will be no justice. Indonesia will have less incentive to reform its justice system while the international community will likely reduce its post-UNTAET support for the Serious Crimes work of East Timor’s embryonic justice system.

The solidarity movement must also look to other ways of advancing its strategy bearing in mind that the need to end impunity is also a major concern of colleagues in the Indonesian NGO movement. The possibility of preparing legal cases against leading generals and using the courts of countries, such as Belgium, which have shown a willingness to exercise universal jurisdiction over Crimes Against Humanity, is an idea which the movement must seriously consider. Solidarity groups are likely to have the chance to discuss this and other possible strategies at a conference on impunity in Amsterdam at the beginning of December.

The constant search for justice goes on, and the international solidarity movement still has a lot of important support work to do in this new era in East Timor’s history.


TAPOL, the Indonesia Human Rights Campaign  Up-dated May 1
Defending victims of oppression in Indonesia and East Timor, 1973-2001
TAPOL - which means political prisoner in Indonesian - is a leading English language authority campaigning on the human rights situation in Indonesia and East Timor. Estab in 1973, TAPOL has depended on networking with organisations in Indonesia, with NGOs in the UK and with solidarity groups around the world.
TAPOL produces the bi-monthly TAPOL Bulletin; occasional reports and briefing papers and other publications. Australian subscribers to TAPOL Bulletin may pay in A$ to: TAPOL (Australia) PO Box 121, Clifton Hill, Vic 3068 Rates for Individuals A$45, Unwaged A$22, Institutions A$80
Email: tapol@gn.apc.org  Homepage: http://www.gn.apc.org/tapol  ET Webpage: http://www.gn.apc.org/tapol/easttimorlatest.htm


See also:

BD: War Crimes & Crimes Against Humanity - A collection of recent press releases, petitions, articles and news

BD: Calls for International War Crimes Tribunal - A collection of recent reports, articles and news

BD: Military and political aid to Indonesia - A collection of recent reports, articles and news

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"The Indonesian and UNTAET systems are deeply flawed; much of the support for an international tribunal is based on their perceived failure. However, there is an assumption that no more can be done to improve their efficacy. This may be true generally in respect to Indonesia; certainly in the short and medium term it is reasonable to expect that Jakarta will continue to avoid a judicial examination of the role of senior officials, or to transfer them to an alternative jurisdiction. A restructured Serious Crimes Unit, on the other hand, has the potential to achieve many of the goals that supporters of an international tribunal seek." Jon Cina, [until recently] Case Manager and Legal Advisor to UNTAET’s Serious Crimes Unit, [previously] war crimes investigator in Kosovo & working at the International Criminal Tribunal for the former Yugoslavia
See also: BD: Calls for International War Crimes Tribunal

An International Tribunal for East Timor?

By Jon Cina

Contents
Introduction
Why an International Tribunal?
Could an International Tribunal be Effective?
Are There Alternatives to an International Tribunal?


Introduction

During the recent campaign for the election of the Constituent Assembly, there were renewed appeals for the United Nations to establish an international criminal tribunal to investigate and try perpetrators of crimes committed during the Indonesian occupation of East Timor. Such calls reflect acute and widespread disillusionment with efforts to date by UNTAET and Indonesia to bring the guilty to justice. As a result, momentum is building within various sectors of East Timorese civil society to ensure the establishment of such an institution.

Although these demands are not new, there has been little discussion of whether and how an international criminal court could actually advance the cause of justice in East Timor. This article therefore examines some of the arguments for and against such a tribunal.


Why an International Tribunal?

An international tribunal is an institution composed of judges, prosecution, investigation, defense lawyers and administration, established in response to particular crimes considered so serious that they concern the international community as a whole. Such tribunals carry out investigations and conduct trials outside national judicial systems. The UN Security Council, acting on behalf of the international community, may use special powers to create one. The Security Council can also grant the resulting tribunal legal authority to order countries to assist it. The UN appoints international judges and prosecutors to staff courts established in this way. A more recent variant is for the UN to enter into an agreement with the government of an independent country to create a special court, which the Security Council can then endorse. The UN is currently negotiating such treaties with Sierra Leone and Cambodia. Unlike courts created directly by the Security Council, however, these institutions include some local judges, selected by the UN and the national governments concerned.

It is assumed that a court established by the UN in the name of the world community would have greater legitimacy and authority than domestic courts in East Timor and Indonesia. The tribunal could be vested with the power to order states, including Indonesia and Australia, to co-operate by providing relevant evidence, such as intelligence material against perpetrators, and to transfer accused persons residing in their territory. If Indonesia or other governments refused to do so, the tribunal could, in theory, refer such non-compliance to the Security Council for an appropriate response. The proposed international court and its prosecution office could thus potentially become vocal and morally powerful advocates for justice.

An international court is also viewed as the correct judicial response to the systemic, savage and sustained crimes committed in East Timor, especially as one element of the policy behind the crimes committed in 1999 was to attack UNAMET, and thereby challenge the authority of the Security Council.

The Report of the UN International Commission of Inquiry on East Timor recommended such a tribunal in January 2000, but the UN Secretary-General and Security Council favored a parallel approach focusing on domestic legal systems. Thus, Indonesia was urged to investigate and prosecute appropriate individuals under its jurisdiction, while the UN established the Serious Crimes Unit (SCU) within UNTAET to mount its own prosecutions.


Could an International Tribunal be Effective?

The most concrete difficulty with accountability for crimes of the past is how to obtain custody of the most senior responsible individuals, most of whom remain in Indonesia under the control of an uncooperative government and military. The SCU has notably failed to indict or prosecute such persons. However, an international court, even one with the widest possible powers to order state compliance, is unlikely to resolve this dilemma. This is because of Jakarta’s stated refusal to cooperate with any international tribunal and the unlikelihood of Indonesia’s powerful allies, many of which are members of the Security Council, exerting pressure on Jakarta to do so.

Other international tribunals have in general been successful in obtaining custody of suspects. This is more the result of their unique circumstances, however, rather than their status as international courts: in Germany and Japan, foreign armies controlled the countries and were able to secure the attendance of the majority of suspects at the Nuremberg and Tokyo tribunals; and in Rwanda, supportive national and regional governments have arrested suspects and made them available for trial.

East Timor faces a situation closer to the countries of the former Yugoslavia, where a number of countries provided refuge to individuals charged with atrocities by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Although the ICTY’s mandate from the UN includes the power to order governments to assist it, and there was a multinational military force in the region with the power to arrest suspects, it took several years before shifting priorities among powerful Western countries finally produced effective pressure on governments to surrender the most senior accused persons. Indonesia’s economic and strategic significance to the countries that dominate the United Nations is generally far greater than Yugoslavia’s. Thus, even the authority of an international tribunal is unlikely to overcome the political obstacles to effective international pressure on the Indonesian government to transfer suspects.

Another major obstacle an international tribunal would confront is funding. Since their creation in 1993 and 1994, the ICTY and its sister court for Rwanda (ICTR) have cost over US$700 million. The ICTY expects to continue operation until 2020. The expenditures and the life span are signs of the success of both courts in establishing a workable, if limited, system of international criminal justice, a success that has far exceeded the expectations or intentions of those who created the two tribunals. But these successes are also a virtual guarantee that the international community will not again enter into an open-ended commitment to find and to try perpetrators in any given situation. Current efforts to create United Nations courts in Cambodia and Sierra Leone indicate that there would only be sufficient support for a very limited form of international criminal body for East Timor.

The difficult decisions about who should be prosecuted in such a context may leave many as unsatisfied as they are with the current UNTAET and Indonesian processes. Indeed, an international tribunal may exacerbate existing tensions over who is accountable. East Timor may face a situation similar to that of Rwanda, where low-level perpetrators are tried relatively quickly but with less stringent legal safeguards by the struggling Rwandan judicial system, while those ultimately responsible remain at liberty or are prosecuted over a longer period, with full respect for due process by the ICTR, which is based outside the country. Thus, the relationship between an international tribunal, the SCU and the Commission for Reception, Truth and Reconciliation in particular requires detailed consideration.

There would also be an inevitable delay between the decision to establish an international tribunal and the commencement of its investigations and trials. Experience with other tribunals indicates that it can take years of negotiations to find agreement among the views of many different countries on what the court’s mandate and legal powers to compel co-operation should be. Securing funding and hiring competent staff translating commitments into action- is also usually a slow and complex process.


Are There Alternatives to an International Tribunal?

The Indonesian and UNTAET systems are deeply flawed; much of the support for an international tribunal is based on their perceived failure. However, there is an assumption that no more can be done to improve their efficacy. This may be true generally in respect to Indonesia; certainly in the short and medium term it is reasonable to expect that Jakarta will continue to avoid a judicial examination of the role of senior officials, or to transfer them to an alternative jurisdiction. A restructured Serious Crimes Unit, on the other hand, has the potential to achieve many of the goals that supporters of an international tribunal seek.

Troubled by weak management, a narrowly interpreted mandate and inadequate political and financial support, the SCU has little credibility among East Timorese or international actors. Yet, there are persuasive reasons for continuing to support it. Acting in conjunction with the Special Panels for Serious Crimes, it is a Security Council-mandated process to investigate and prosecute perpetrators. It therefore has much of the authority and legitimacy that an international court would provide, and a more creative and active approach could see it using its mandate to increase pressure on Indonesia, through UNTAET, the Security Council and direct bilateral discussions.

Moreover, the SCU and Special Panels are based in East Timor and are required to involve East Timorese fully in its work, both crucial elements in ensuring that justice is accessible to, and includes the input of, the East Timorese people. There is no guarantee, however, that an international court would be located within East Timor or that it would include East Timorese staff effectively. Without such participation, any effort to use judicial mechanisms to deal with the mass violence committed in East Timor seems destined to fall short of the expectations of the East Timorese people.

The potential in the current system should therefore be tested before embarking on an alternative criminal justice mechanism. This should begin with a radical and genuine reform of the structure, personnel and funding of the SCU and related offices.

As part of this effort, the UN should first commission an expert review of the operation of the SCU and Special Panels and commit to implementing the findings. UNTAET should also relocate the SCU, Special Panels and defense counsel outside existing government structures to reflect the importance of accountability for past crimes. Moreover, UNTAET should recruit additional prosecutors, defenders, investigators, and other professional staff and should expedite the recruitment of East Timorese personnel to shadow internationals.

In addition, the SCU should urgently articulate a policy on crimes committed before 1999. UNTAET should begin an ongoing and comprehensive public education program to disseminate information about the criminal accountability process throughout East Timor, while SCU staff should be based, and Special Panels should be enabled to sit, outside Dili as much as possible.

Consideration should also be given to the establishment of a consultation committee composed of East Timorese and international NGOs and other interest groups to facilitate the transfer of information and views to and from SCU, the Special Panels and defense counsel.

To consider post-independence options for justice, UNTAET should sponsor a meaningful conference that would include representatives of East Timorese and international NGOs, various sectors of civil society, and international legal specialists.

Jon Cina was, until recently, a Case Manager and Legal Advisor to UNTAET’s Serious Crimes Unit. Prior to coming to East Timor, he spent four months documenting war crimes in Kosovo and three years working at the International Criminal Tribunal for the former Yugoslavia.
 


See also:

BD: Calls for International War Crimes Tribunal - A collection of recent reports, articles and news

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"The justice system can respond to violence against women in a number of important ways by: * clearly prohibiting violence; * ensuring that the justice system treats domestic violence in the same way as other forms of violence; * providing protection for women from continuing violence; and * providing adequate and just compensation for injuries caused by violence. ... Ensuring that the law itself protects women and complies with international human rights standards is only the first step. In addition, there must be effective community education about women’s rights and sensitive administration of the laws. It is the responsibility of all those involved in the justice system law makers, police, prosecutors, lawyers and judges - to ensure that women achieve full equality before the law." Kate Halliday, Australian-based lawyer who recently volunteered with FOKUPERS (the East Timorese Women’s Communication Forum) in Dili
See also:

BD: Calls for International War Crimes Tribunal
BD: East Timorese Women's Issues / Kestaun hosi Feto
BD: Sexual & related Violence as a weapon of war

Women and Justice

By Kate Halliday

The number of cases of violence against women in East Timor has risen sharply according to media reports (see The La’o Hamutuk Bulletin, Vol. 2, Nos. 1&2) with the majority of offenders being husbands and brothers. East Timorese women activists have repeatedly raised concerns about this matter.

The Vulnerable Persons Unit of CIVPOL in Dili also notes that there has been an increase in women reporting domestic violence crime over the last year. However, they also report that women are experiencing difficulties with the criminal process and that they are very vulnerable to pressure to withdraw their complaints of violence.

The justice system can respond to violence against women in a number of important ways by:

* clearly prohibiting violence;
* ensuring that the justice system treats domestic violence in the same way as other forms of violence;
* providing protection for women from continuing violence; and
* providing adequate and just compensation for injuries caused by violence.

The Convention on the Elimination of Discrimination Against Women states that women are entitled to equality before the law. The Declaration on the Elimination of Violence against Women recognizes that violence against women is an impediment to equality and the full enjoyment of human rights.

At the moment in East Timor the legal situation in relation to violence against women is quite complex due to the continuing existence of Indonesian law in some areas and the introduction of UNTAET regulations in other areas. However the first regulation passed by UNTAET in 1999 makes it clear that international human rights standards, including the standards contained in the Convention on the Elimination of All Forms of Discrimination Against Women, have a clear role in the law in East Timor. Public officials must exercise their duties in accordance with these standards. Indonesian law only continues to apply in East Timor as long as it complies with these international human rights standards or until it is replaced by UNTAET regulation.

The Indonesian criminal code does not provide adequate protection for women from violence. Under this law, for example, it is not prohibited for a man to rape his wife. Threats of violence and attempted assault are also not prohibited by the code. This law fails to give a clear message to the community that domestic violence is the same as other forms of violence. It is also inconsistent with international human rights standards, in that women do not have the full support of the law in seeking protection from violence.

UNTAET’s law on criminal procedure introduced some important rights for victims of violence. Under this law an investigating judge has the power to prevent a perpetrator who has been arrested for domestic violence from living in the family home while the court is investigating and prosecuting a case of violence. When convicting a perpetrator of violence, a judge may order the perpetrator to pay compensation to the victim. This is a significant law for victims of violence as many would not be able to pursue civil proceedings against a perpetrator for compensation.

Many East Timorese communities continue to use traditional dispute resolution mechanisms that also involve the payment of compensation to a victim by the perpetrator. Recently, however, there have been allegations that some judges are blurring these traditional roles with their new authority in the formal legal system, and “resolving” domestic violence disputes merely by ordering payment of compensation, rather than proper prosecution of criminal behavior. It is vitally important that judges and prosecutors are trained adequately in domestic violence issues.

Ensuring that the law itself protects women and complies with international human rights standards is only the first step. In addition, there must be effective community education about women’s rights and sensitive administration of the laws.

It is the responsibility of all those involved in the justice system law makers, police, prosecutors, lawyers and judges -- to ensure that women achieve full equality before the law.

Kate Halliday is an Australian-based lawyer who recently volunteered with Fokupers in Dili.


An International Tribunal is the most pressing demand in the interests of justice. Of all the victims of Indonesian military violence the greatest suffering was borne by women, who up to this time, have not met with the justice they hoped for.
The East Timorese Women’s Network, Women’s Issues in East Timor, Donors’ Conference June 2001


Bahasa Indonesia:
FOKUPERS - Forum Komunikasi Untuk Perempuan Loro Sae  Updated Nov 9
Direktur: Manuela Leong Pereira
Maksud Umum: Fokupers didirikan pada tahun 1997. Organisasi ini membantu korban politik dan juga memberikan nasihat atau ‘counselling’ dan lain lain kepada perempuan yang menderita sebagai bekas tapol, atau yang menjadikan janda karena perang, atau isteri tapol. Selain dari itu, Fokupers mendorong hak asasi manusia, pada khususnya untuk perempuan, dalam masyarakat setempat.
Kegiatan Sekarang: * Sudah mengadakan bengkel untuk mendiskusi bagaimana perempuan akan diikuti atau menjadi lebih aktip di masyarakat Timor Loro Sa’e. * Pada saat ini, kami memusatkan perhatian atas latihan ‘trauma counselling’ untuk pekerja Fokupers.
Contact: Maria ("Micato") Domingas Alves Mob: 0418 867 274

English:
FOKUPERS - the East Timorese Women’s Communication Forum  Updated Nov 9
Women's Development and Advocacy Location: Dili, Liquisa, Maliana, Suai
Director: Manuela Leong Pereira; Staff: five staff and many volunteers
Fokupers is a registered East Timorese non-government organization (ETNGO)
General Mission: Fokupers was founded in 1997. It focuses on political victims and gives counselling and other forms of assistance to women victims of violations, including ex political prisoners, war widows and wives of political prisoners. Its mandate also includes promoting women’s human rights among the local population, especially the East Timorese women.
Historic Achievement: Fokupers, along with other women's organizations, organized the first-ever women's conference in East Timor on November 9 and 10, 1998, and then held a seminar and demonstration in Dili on November 25, 1998, on the international day against violence against women.
Current Activities: * Conducting workshops discussing ways to enhance or develop further women’s participation in Timorese society. * Focusing on receiving trauma counselling training for their staff in order to provide counsel to women victims. * Supporting women survivors of violence and to end violence against women through advocacy and education. * Community-based local groups in different areas of the country. * Publishing materials.
Goal: To set up a trauma centre for East Timorese women who need assistance with rehabilitation. Before its offices were destroyed by the Indonesian military and militia in September, 1999, Fokupers was moving away from needing outside help by raising its own funding through sales of books and crafts made by East Timorese women.
Contact: Maria ("Micato") Domingas Alves Mob: 0418 867 274


See also:

BD: East Timorese Women's Issues / Kestaun hosi Feto - A collection of recent information, petitions, articles and news

BD: Sexual & related Violence as a weapon of war - A collection of recent articles and news

BD: Calls for International War Crimes Tribunal - A collection of recent reports, articles and news

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Tetum: (the most common East Timorese language)
La’o Hamutuk, Institutu Timor Lorosa’e ba Analiza no Monitor Reconstrusaun / Institut Permantauan dan Analisis Reconstruksi Timor Loro Sa'e  Updated Oct 30
Saida mak La’o Hamutuk? La’o Hamutuk organizasaun klibur Ema Timor Lorosa’e no Ema Internacional ne’ebe buka atu tau matan, halo analize ho halo relatorio kona ba hahalok (actividade) instuisaun internacional ne’ebe oras ne’e haknaar iha Timor Lorosa’e, liu-liu hahalok sira ne’ebe iha relasaun ho rekonstrusaun fizika no social Timor Lorosa’e nian. La’o Hamutuk fiar katak Povo Timor Lorosa’e mak tenke hakotu iha procesu rekonstrusaun ne’e nia laran no procesu rekonstrusaun ne’e tenke demokratiku no transparante duni.
Staf Timor oan: Inès Martins, Fernando da Silva, Thomas Freitas; Staf Internasional: Pamela Sexton, Mark Salzer; Kuadru Ejekutivu: Sr. Maria Dias, Joseph Nevins, Fr. Jovito Rego de Jesus Araùjo, Aderito Soares Durubasa: Benjamin Sanches Afonso, Tomé Xavier Jeronimo, Maria Bernardino, Manuel Tilman, Djoni Ferdiwijaya Ilustrador: Sebastião Pedro da Silva, Nan Porter Design Jeronimo Staf Monitoriu Projektu Judiciariu JSMP: Christian Ranheim, Caitlin Reiger, Rayner Thwaites
Local Contact:  P.O. Box 340, Dili, East Timor (via Darwin, Australia)  Mobile fone: +61(408)811373;  Telefone Uma: +670(390)325-013 Email: laohamutuk@easttimor.minihub.org
International contact: +1-510-643-4507 Email: lh@etan.org Homepage: http://www.etan.org/lh
Boletim La’o Hamutuk: [Tetum PDF format]
Vol. 2, No. 3 Junho 2001 Fundu Monetariu Internasional (IMF) iha Timor Lorosa’e: http://www.etan.org/lh/PDFs/bulv2n3T.pdf
Vol. 2, Nos. 1-2 Abríl 2001 Vizaun Jeral Hosi Fundu Ba Rekonstrusaun Timor Loro Sa’e: http://www.etan.org/lh/PDFs/lhbl2n1t.pdf
Vol. 1, No. 4, 31 Dejembru 2000 Banku Mundial iha Timor Loro Sa’e: http://www.etan.org/lh/PDFs/lhbul4tm.pdf
Vol. 1, No. 3, 17 Novembro 2000 Hari Sistema Saude Nasional iha Timor Lorosa’e:  http://www.etan.org/lh/PDFs/LHbul3tm.pdf
Vol. 1, No. 2, 17 Julho 2000 Protesaun ba meio ambiente iha TL: http://www.etan.org/lh/PDFs/bulletin02tetum.pdf
Vol. 1, No. 1, 21 Juñu 2000 Rekonciliasaun: http://www.etan.org/lh/PDFs/bulletin01tetum.pdf

English:
La'o Hamutuk: East Timor Institute for Reconstruction Monitoring and Analysis  Updated Oct 30
La'o Hamutuk is a registered East Timorese non-government organization (ETNGO)
La'o Hamutuk (Tetum for Walking Together) is a joint East Timorese-international organization that seeks to monitor, to analyze, and to report on the reconstruction activities of the principal international institutions. It believes that the people of East Timor must be the ultimate decisionmakers in the reconstruction process and that the process should be as democratic and transparent as possible ...
East Timorese staff: Inès Martins, Fernando da Silva, Thomas Freitas; International staff: Pamela Sexton, Mark Salzer Executive board: Sr. Maria Dias, Joseph Nevins, Fr. Jovito Rego de Jesus Araùjo, Aderito de Jesus Soares Translators: Maria Bernardino, Tom‚ Xavier Jeronimo JSMP staff: Christian Ranheim, Caitlin Reiger, Rayner Thwaites
International contact: +1-510-643-4507 Email: lh@etan.org Homepage: http://www.etan.org/lh
La’o Hamutuk Bulletin: http://www.etan.org/lh/bulletin.html
Mar 23 2001 LH: Job announcement for La'o Hamutuk in East Timor: http://www.pcug.org.au/~wildwood/01marjob.htm
Activity Report: Mar 16 2001 LH: http://www.pcug.org.au/~wildwood/01marlhreport.html


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