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"How much time is the international community going to give the [Indonesia’s ad hoc] tribunal to come up with results? Over two years have already elapsed since the atrocities occurred. A total absence of time limits serves to encourage further delay tactics. ... The trial is not an exercise in vengeance, but rather essential: “to open the way forward to genuine reconciliation in East Timor” (UN Commission of Inquiry), and “to encourage democratic reforms in Indonesia and help prevent the armed forces officers responsible for the devastation in East Timor, most of whom are still in positions of prestige and authority, from continuing to commit atrocities against other Indonesian citizens” (letter from 30 members of the US Congress to Colin Powell, 30-1-01)." East Timor Observatory
See also:

BD: War Crimes & Crimes Against Humanity
BD: Calls for International War Crimes Tribunal

We should all understand that Liberation of the Fatherland is only half the objective of independence.
After independence, Liberation of the People constitutes the other half of the objective of independence.
(Xanana Gusmão, 1999)

East Timor Observatory

Ref.: JUS05-2002-01-25eg

Subject: Indonesia delays East Timor atrocities trials


Contents:
Summary
Background
The Facts
Conclusions

 

Summary:

To avoid the setting up of an international human rights tribunal to try those responsible for crimes against humanity committed in East Timor, Jakarta’s authorities proposed that suspects be tried by an Indonesian court (see ETO, JUS03-2001/09/02). Given the real threat of China’s veto on the Security Council, and in spite of its own Commission of Inquiry’s recommendations, the UN agreed to Indonesia’s proposal, while reserving the right to reconsider its decision if Indonesian justice did conform to international standards and/or did not fully satisfy international community expectations.

A look at developments over the past 2 years will shed some light on Indonesia’s difficulties in honouring its commitment to bring the perpetrators to justice, and on the delay tactics used to stall the trials.  Some steps forward – a law, an agreement – were taken when pressure from outside (the UN Secretary General’s visit, the UNHRC’s session in Geneva, payment of international aid by the IMF) was felt.  However, once the pressure had eased, the promulgation necessary for the law to be enacted, and the parliamentary endorsement required for the agreement to become valid, did not materialise.  Indonesia´s pledges to the international community and to the East Timorese were lost in what became a constant backwards and forwards between Government and Parliament, and Parliament and the President.
 

Background:

Since the September 1999 killings and devastation in East Timor, political instability in Indonesia has been mounting, and the country has had 3 Presidents: Habibie, Wahid and Megawati. President Wahid was soon ousted as he attempted to reduce some of the military’s influence. The arrival of Megawati, leader of the majority party, brought hopes of improved stability but, in view of her own position and her links to the military, there seems to be little prospect of those responsible for the atrocities committed in East Timor being be brought to justice.
 

The Facts:
 

1999 -

SEPTEMBER 4 – Results of the UN organised ‘popular consultation’ are announced: 78,5% of Timorese reject the autonomy proposed by Indonesia.  This rejection opens the way to independence.
· Killings, destruction (70-80%) and massive displacement of the civilian the population to Indonesia (±300.000 people out of East Timor’s population of 800.000).
· Kofi Annan describes the crimes committed as “crimes against humanity”.

14 - Mary Robinson calls for an International Commission of Inquiry (COI).

15 – The UN Security Council (UNSC) decides to send an international force (UN resolution 1264).

21 – To avoid an international COI, President Habibie endorses an Indonesian investigative team – the Commission to Investigate Human Rights Violations in East Timor (KPP-HAM) - set up by Indonesia’s official National Commission for Human Rights (Komnas-HAM). «We must show that the Commission (KPP-HAM) is credible... and that, therefore, no interference from the UN is necessary», said Foreign Minister Alwi Shihab.

23-24 – At a special session, the UN Commission on Human Rights (UNCHR) adopts a resolution providing for an international commission of inquiry into the events following the announcement of the ballot to be set up in January. In spite of Indonesia’s opposition, the resolution it is adopted with a large majority (32 – 12).  The UN Economic & Social Council (ECOSOC) approved the decision in November.

OCTOBER, 8 – An interim law (1/1999) passed by President Habibie establishes a special court to work with the KPP; special powers are awarded to the KPP members as “ad hoc attorneys’ to prepare the prosecution.
· President Abdurrahman Wahid is elected.

25 – Withdrawal of Indonesian Armed Forces from East Timor.

NOVEMBER – Indonesia refuses 3 UN Special Rapporteurs permission to enter West Timor.

24 – The Minister of Justice asks Indonesia’ House of Representatives (DPR) to pass Law 1/1999 on the constitution of a special court. The House’s response would only be given in March 2000.

DECEMBER, 15 – The UNSC urges “that those responsible be brought to trial” (resolution 1264).
· Alwi Shihab, announces: “we shall not hand over our generals to an international court”
 

2000 -

JANUARY, 25 - Alwi Shihab states: “We are trying to avoid an international tribunal at all costs” and says he can rely on a veto [China’s] at the UNSC.  This is confirmed by Chinese Foreign Ministry spokesperson, Zhu Bangzao.
Success would “also depend on the results of the KPP”, said Alwi Shihab.

31 – Report of the international COI: “The crimes against humanity described showed there had been a systematic programme that was the result of broad planning”, which would not have been possible without the support of the Indonesian security forces.  “The UN should set up an international tribunal”.

31 – The KPP arrives at similar conclusions to those of the international COI, and finds 33 individuals, including General Wiranto, former commander-in-chief of Indonesian Armed Forces and then Security and Political Affairs Minister, to be allegedly responsible

FEBRUARY, 7 – Without likelihood of agreement at the UNSC, Kofi Annan acknowledges, en route to Indonesia, the inevitability of having to accept to an Indonesian tribunal but emphasises: “if Indonesia’s response is not considered satisfactory, the UNSC will reconsider the matter”.

13 - President Wahid suspends General Wiranto, a key suspect in the case, but says he would be granted an amnesty if he were to be found guilty.

15 – Kofi Anan appears hopeful on his arrival in Indonesia: “If the Indonesian Government continues in this way and brings those responsible to trial, then it will not be necessary for the Security Council to set up an international tribunal”.

17 – General Attorney Marzuki Darusman states: “I hope that the trial can be held within the next 3 months”. [Two years later, we are still waiting.]
· 3 months is the timescale set by the Government, say the Ministers for Human Rights, Hasballah Saad, and Justice, Yusril Mahendra.

22 – The Security Council urges Indonesia to ensure  “prompt, wide-reaching, effective and transparent legal proceedings, in accordance with international standards”.

MARCH, 13 – The House of Representatives (DPR) rejects the request for a special tribunal, put forward by President Habibie and supported by President Wahid.

30 – Under pressure, the DPR is forced to draft a new law (26/2000) on human rights tribunals.

APRIL, 6 – In a move described by Kofi Annan as ‘an important step’, the UN Transitional Administration in East Timor (UNTAET) and Indonesia (the Attorney General) sign the ‘Memorandum of Understanding Regarding Cooperation in Legal, Judicial and Human Rights Related Matters’, which provides for information exchange and the extradition to Timor of individuals [only militias and low-ranking military personnel, or high-ranking Indonesian officers also?], accused of crimes committed there.

AUGUST – While the new law 26/2000 is being drafted, the DPR proceeds to amend Article 28 of the Constitution, to include the principle of non-retroactivity: “the right not to be prosecuted under a retroactive law is a human right that cannot be changed”. [This principle should not apply to acts “regarded as criminal under the general principles of law, as recognised by the majority of nations” International Covenant on Civil & Political Rights]. This makes the defence easy, says Mulyadi, defence lawyer for the generals, because the penal code provides for punishment of the perpetrators of crimes but not those who issued the orders. The law on the special tribunal will conflict with the country’s fundamental law, and it will be the Constitution that prevails, says Mohammed Assegaf, another of the generals’ defence lawyers.
· The Attorney General (AG) announces that the trials should commence within the next few weeks.

OCTOBER, 17 – The AG states that the investigations have been concluded, and names 23 suspects.  Only 5 cases were dealt with: the massacres at the Liquiça and Suai churches, the killings at the Carrascalão house and at the Bishop’s residence in Dili, and the murder of Dutch journalist Sander Thoenes.

NOVEMBER, 6 – Indonesia’s House of Representatives adopts law 26/2000. The AG announces that proceedings to try the 5 cases investigated could commence in January, but the House of Representatives omits to send the new law to the President for promulgation.

DECEMBER, 1 – Indonesian AG tells UNTAET’s AG, Mohamed Othman, that he cannot comply with the request for the extradition of Eurico Guterres because the latter is being accused in Indonesia.
 

2001 -

FEBRUARY, 23 - Mary Robinson warns that an international tribunal would be set up if Indonesia did not bring the suspects to trial.

MARCH, 21 – The House of Representatives sends law 26/2000 to President Wahid.

APRIL, 19 – Komnas HAM Secretary, Asmara Nababan, acknowledges on Netherlands Radio that it would be “better to set up an international tribunal.  It is the only way for justice to be done”.

20 – In a consensus statement, the UNCHR in Geneva takes note of the Indonesian parliament’s draft law and calls for the establishment of a tribunal “without delay”.

APRIL, 23 – The President enacts Presidential Decree No.53/2001, establishing an ad hoc human rights tribunal to hear cases of crimes against humanity in East Timor and Tandjung Priok (Indonesia). The Supreme Court still has to appoint the judges, and the appointment has to be approved by the President.

The Decree specifies that, in relation to East Timor, the tribunal would be competent to deal with crimes committed only “after” the 30 August 1999 ‘popular consultation’, thus effectively eliminating 2 of the 5 cases (Liquiçá massacre and the Carrascalão house murders).

· The UN protests against the tribunal’s restricted mandate and calls for the presidential Decree to be re-drafted. A spokesperson for the AG responds by clarifying that the crimes “investigated by the Komnas HAM are considered gross violations and would be investigated and tried by the [special] tribunal”; the other crimes, committed prior to the ballot and not investigated by the Komnas HAM, would be prosecuted under general law by ordinary courts [in which only perpetrators can be prosecuted].

JUNE - President Wahid sacks AG, Marzuki Darusman, and appoints Baharuddin Lopa, who dies shortly afterwards.

AUGUST, 1 – One of Megawati Sukarnoputri’s first tasks as newly elected President is to enact a new decree (96/2001), which had been called for by the UN. The decree is welcomed as it restores the two cases that had been excluded under decree 53/2001.  However, ...

10 – In a letter sent to UNTAET, Megawati states that the tribunal would now only hear cases relating to events “between April and September 1999 in the districts of Liquiça, Dili e Suai”. This means new restrictions on the court: only crimes committed in 3 of East Timor’s 13 districts would be heard, while numerous serious abuses, such as sexual crimes, destruction and mass deportations would fall outside the tribunal’s jurisdiction.

15 - Megawati appoints a new AG, Muhammad Abdul Rachman. Rachman was the head of the generals’ defence team and is believed to have been responsible for getting General Wiranto’s name removed from the list of suspects.
· Various trial commencement dates are announced: September, October, December.

NOVEMBER, 27 – Indonesia’s AG informs his Timorese counterpart that the “Memorandum of Understanding” signed in April 2000 by his predecessor is null and void: “It is not legally binding because it was not endorsed by Indonesian Parliament”.

DECEMBER, 12 - The Supreme Court sends the President a list of the judges who will sit at the ad hoc tribunal. Only President Megawati’s approval is now required for the trials to begin, but, once again, they are postponed.

29 – In a speech given on ‘Army Day’, Megawati tells the armed forces: “Do your work in the best possible way, without worrying about accusations of human rights violations.  Do your job without hesitation”.
 

2002 -

JANUARY, 9 – The Justice Minister announces: “Today is the last day” for Megawati to sign the decree appointing the judges.  The following day, as he leaves a meeting with Megawati, he says: “I explained [to her] that the President should only approve the appointment of the judges; choosing them was the job of the Supreme Court”, which had drawn up a list of 60 judges.

· It is common knowledge that the military, which supported President Wahid’ s resignation and his succession by Megawati, are bringing very heavy pressure to bear. At the ‘Indonesian Democracy in 2002’ seminar, Wiranto publicly accuses Megawati and her predecessors of having failed: “none of these Governments has been capable of pulling the nation out of the crisis”.

15 - Megawati approves the appointment of 30 judges (12 practicing judges and 18 professors from various law faculties as ad hoc judges). Her choice is criticised as it does not include any members of human rights organisations and because the selection criteria have not been made known.  The low remuneration proposed and the requirement to work exclusively for 5 years on the cases excluded experienced judges.

· The number of defendants drops, once again:  there are now 18.  The 2 most high-ranking generals, Wiranto and Zacky Anwar Makarim, and the two main militia commanders, Eurico Guterres and João Tavares, are not among the 18.
 

Conclusions:

1. The process of setting up the tribunal has clearly revealed an absence of political will on the part of the different Indonesian authorities and the delay tactics used to draw out the entire process.  Numerous voices have been calling for an international tribunal, including one of the Indonesian personalities who is highly involved in the Indonesian court’s proceedings, the Secretary of Komnas HAM, who regarded an international tribunal as “the only way for justice to be done”.

2. Only 5 cases will be heard in Indonesia.  Numerous public statements suggest that the ad hoc tribunal will be limited to those 5 cases only.  If taken in isolation, it may not be possible to prove, on the basis of just the 5 cases, that there was a systematic and large-scale attack on the civilian population – criteria required for crimes to be considered “crimes against humanity”, and it may be harder to prove the involvement of those mainly responsible.

3. All the other crimes, such as the devastation and the mass deportations that show planning and execution directed at the highest levels of the armed forces and State, would go unpunished.

4. The proceedings initiated by the Indonesian court and by the judicial system in East Timor, in which foreign UN-appointed judges are taking part, will be the first tests of Indonesia’s readiness to honour its commitments and of the cooperation between the two systems.  In the flurry of media attention that may focus on comparing the trials held by the different sides, the fact that only a very small fraction of the crimes actually committed are being covered should not be overlooked.

5. Referring to the misgivings about the composition and appropriateness of Indonesia’s ad hoc tribunal, the UN Secretary General’s Special Representative in East Timor, Sérgio Vieira de Mello, said: “We will judge on the results”. How much time is the international community going to give the tribunal to come up with results?  Over two years have already elapsed since the atrocities occurred. A total absence of time limits serves to encourage further delay tactics.

6. The trial is not an exercise in vengeance, but rather essential: “to open the way forward to genuine reconciliation in East Timor” (UN Commission of Inquiry), and “to encourage democratic reforms in Indonesia and help prevent the armed forces officers responsible for the devastation in East Timor, most of whom are still in positions of prestige and authority, from continuing to commit atrocities against other Indonesian citizens” (letter from 30 members of the US Congress to Colin Powell, 30-1-01).


Observatory for the monitoring of East Timor's transition process a programme by the 'Comissão para os Direitos do Povo Maubere'
Coordinator: Cláudia Santos 
Rua Pinheiro Chagas, 77 2ºE -  1069-069     Lisboa - Portugal
ph.: 351 1 317 28 60  -  fax: 351 1 317 28 70  -  e-mail: cdpm@esoterica.pt
URL: http://homepage.esoterica.pt/~cdpm

Portuguese:
Observatório Timor Leste  Updated Jan 25
Duas Organizações Não Governamentais portuguesas, a COMISSÃO PARA OS DIREITOS DO POVO MAUBERE (CDPM) e o grupo ecuménico A PAZ É POSSÍVEL EM TIMOR LESTE que, desde o início da década de oitenta, se solidarizam com a causa do Povo de Timor Leste, tomaram a decisão de criar o OBSERVATÓRIO TIMOR LESTE. A vocação do Observatório Timor Leste é, no quadro das recentes alterações do regime de Jacarta face a Timor Leste, o acompanhamento, a nível internacional, do processo negocial e, no interior do território, do inevitável período de transição que se anuncia.
correio electrónico: cdpm@esoterica.pt  URL: http://homepage.esoterica.pt/~cdpm/framep.htm

English:
East Timor Observatory  Updated Jan 25
ETO was set up by two Portuguese NGOs - the Commission for the Rights of the Maubere People (CDPM) and the ecumenical group Peace is Possible in East Timor,  which have been involved in East Timor solidarity work since the early eighties. The aim of the Observatory was to monitor East Timor's transition process, as well as the negotiating process and its repercussions at international level, and the developments in the situation inside the territory itself.
E-mail: cdpm@esoterica.pt  Homepage: http://homepage.esoterica.pt/~cdpm/frameI.htm

French:
Observatoire Timor-Oriental  Updated Jan 25
Deux Organisations Non Gouvernementales portugaises, la ‘Commission pour les Droits du Peuple Maubere’ et l’association oecuménique "La Paix est Possible au Timor Oriental", qui se solidarisent avec la cause du peuple du Timor Oriental depuis le début des années 80, ont pris la décision de créer un OBSERVATOIRE TIMOR ORIENTAL. La vocation de cet observatoire est d’accompagner le processus de transition du Timor Oriental, aussi bien le processus de négociation que ses répercussions au niveau international et l’évolution de la situation à l’intérieur du territoire.
courrier électronique: cdpm@esoterica.pt  URL: http://homepage.esoterica.pt/~cdpm/framef.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 / Pengadilan Internasional - A collection of recent reports, articles and news


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