http://www.crimesofwar.org/mag_timor.html

Crimes of War: The Tribunals (includes photo essay)

Justice Delayed in East Timor 
By Joel Rubin

There is little mystery as to who, under the spotlight of international attention, commanded the spilling of innocent blood and the systematic destruction of East Timor in August 1999. The Indonesian militia swept through East Timor with clear disregard for the laws of war but, as in so many conflicts, there is little likelihood that the perpetrators will ever be held accountable, despite a growing movement to establish war crimes tribunals in the wake of atrocities around the world. In the case of East Timor, neither the United Nations Security Council nor the Indonesian government seem willing to take the steps to ensure that the perpetrators are brought to justice, and the UN Mission in East Timor lacks both a court system and access to the accused.

Like many other East Timorese, Julio Martins Riverio knows who murdered his brother, Aryico, last year. In the softened, red light of an equatorial dusk that has filtered into a maze of burnt-out walls and corrugated tin roofs off one of Dili’s main roads, Riverio quietly recalls what happened on the night the militia and TNI (Indonesian military) arrived in their neighborhood, forced families into trucks and herded them away to a military building on the outskirts of town.

Julio and Aryico hid in the darkness out of fear of what fate awaited them if they went along. The following morning the brothers decided it best to join the others, only to be sent back to their homes to gather some belongings. While they were walking down the street, they were surrounded by another group of TNI soldiers who accused them of being pro-independence fighters.

"They started beating us quite badly until a group of militia arrived," Riverio explains in a monotone. "While TNI watched, the militia continued to beat us and stab us with their swords. I was stabbed in the back and on the arm, but managed to break free and I ran. That was the last time I saw my brother alive. When friends found his body they told me he had died from the stab wounds."

More than a year and a half has passed since the Indonesian military and its militia marauded through East Timor in the weeks leading up to and following a UN-sponsored referendum in which the overwhelming majority of East Timorese voted in favor of independence from Indonesia. According to the UN Human Rights mission in East Timor, Indonesian forces killed an estimated 1,100 people and destroyed over seventy percent of the country’s buildings, while more than 200,000 refugees either fled or were forced across the border into Indonesian controlled West Timor. In an effort to get Indonesian forces to withdraw, UN Secretary-General Kofi Annan threatened to establish a war crimes court to prosecute those responsible for violations of international humanitarian law on the island.

In the wake of the killing and destruction, the United Nations sent a Transitional Administration into East Timor (UNTAET) with a far-reaching mandate to secure, stabilize, and govern the tiny nation until it was deemed prepared for true independence. Undeniable progress has been made in this nation-building experiment. Initially, it appeared that a major aspect of the UN mission would be to follow through with Annan’s threats and create an international tribunal to prosecute those responsible for committing atrocities in East Timor. Today, however, it seems the United Nations is unwilling or unable to take the steps necessary to ensure that justice is served.

On January 31, 2000 the UN International Commission of Inquiry on East Timor submitted its report to the Secretary General. "Confronted with testimonies surpassing their imagination," the commission concluded that the Indonesian military and its militia were responsible for "patterns of gross violations of human rights which… took the form of systematic and widespread intimidation, killings and massacre, humiliation and terror, destruction of property, violence against women and displacement of people."

Such acts are crimes of war according to the Geneva Convention’s Common Article 3, which applies to the laws of war and internal armed conflicts. The article sets forth basic protections and standards of conduct to which the State must adhere, prohibiting violence against civilians and flagrant violations of human dignity. Furthermore, under customary international law, Indonesia arguably stands guilty for its forced movement of the East Timorese population and its vast, wanton destruction of civilian property.

The Commission unequivocally recommended that the United Nations establish an international human rights tribunal to bring those responsible to justice, both to appease the East Timorese, and to reassert the authority of the UN Security Council after Indonesia had blatantly violated its agreement with the Council to provide security during the UN-sponsored referendum.

Not surprisingly, the Indonesian government protested, claiming that such a tribunal would be a violation of its national sovereignty. Instead, Jakarta vowed that it would prosecute those responsible for gross human rights violations and war crimes in East Timor. In turn, the Security Council abandoned its own recommendations, and announced that the United Nations would call on the Indonesian government to adhere to its pledge. Given the well-documented shortcomings of the Indonesian legal system and the lack of any specific laws that would enable the government to prosecute soldiers for human rights abuses or crimes of war, it seemed unlikely from the start that Jakarta would actually follow through with its promises. Thus, Annan insisted that the United Nations retained the right to commence an international tribunal at some unspecified point in the future if Indonesia failed to effectively mete out justice.

A year and half later, however, the Indonesian government has yet to commence a single trial concerning crimes committed in East Timor, and the United Nations has done little pressure Jakarta into doing so. Given the United Nations’ efforts to establish courts for the atrocities in Rwanda, Yugoslavia, Cambodia, and Sierra Leone, and given its unprecedented mandate in East Timor in which it assumed sovereign control of a nation, it seems out of keeping that the United Nations has not moved more forcibly.

UNTAET head Sergio Vieira de Mello says he has had to beg for adequate resources to investigate Indonesia’s crimes, which leaves many wondeirng whether the suffering visited on the East Timorese weighs heavily enough on the world’s collective conscience to force the hand of an international tribunal. The forensic and serious crimes units, "are minimal compared to what we had in Bosnia, Kosovo, and Rwanda," says de Mello. Put differently, 800,000 dead in Rwanda or the geo-political importance of the Balkans compels the UN to action, while 1,100 dead on a distant island are more easily ignored.

Since East Timor’s independence, Indonesia has democratically elected its first president in over 40 years, the reformist Muslim scholar Abdurrahman Wahid. He has struggled to remove the Indonesian military from politics, and was hoping to use East Timor prosecutions against his military opponents when he came to power. But this agenda has been complicated by the fact that most Indonesians view the independence of East Timor as a national humiliation. Newspaper editorials reflect a widely-held belief that the leading militia leader, Eurico Guterres, and his like are "national heroes" who risked their lives fighting for their country. Indonesian Vice-President Megawati Sukarnoputri, unarguably the most popular politician in the country and the one who holds Wahid’s political fate in her hand, named Guterres the head of her political party’s student wing. Further, Indonesian human rights experts widely expect Sukarnoputri — as the forgone successor to the presidency — to halt any progress towards East Timor prosecutions when she assumes power. As Wahid’s health and his authority throughout the archipelago declines, it becomes increasingly obvious that he is struggling against formidable political factions opposed to his push for accountability.

In this contentious context, there is considerable uncertainty regarding the Indonesian government’s willingness and ability to prosecute those responsible for the atrocities in East Timor. Recent months have seen mixed signals strongly indicating that the government is more interested in appearance than action. After an evidence-gathering trip to East Timor, the Indonesian Attorney General’s office released a list of 22 suspects, including head militia leader Guterres. Former Armed Forces Commander General Wiranto, who enjoyed a very close relationship with former dictator Suharto, was found "morally responsible" for the events in East Timor by a government commissioned human rights inquiry. In spite of this, however, Wiranto was not included on the list of war crimes suspects. In what seems to be a horribly misconstrued attempt to demonstrate its commitment to prosecution, the Indonesian government has put Guterres on trial, not for any crimes committed in East Timor, but on a weapons charge stemming from an incident in the refugee camps of West Timor, where he still wields significant power. Indictments of any of the named suspects seem extremely dubious.

In early November, the Indonesian Parliament passed a human rights act that would, for the first time in the nation’s history, empower the courts to prosecute members of the military for human rights abuses and crimes of war. More recently, the Parliament acted to establish an ad hoc court to hear the East Timor cases, but Wahid has yet to ratify that action, and no one is sure that he will. So the progress, while real, is effectively slight.

Without an international tribunal or cooperation from the Indonesian government to create a domestic tribunal, the struggling nation of East Timor is left to pursue justice on its own. For its part, UNTAET is trying desperately to uncover some sense of accountability within the confines of the island nation. Thus far, it has managed to establish the beginnings of a national court system in East Timor and, in early February, an East Timor court handed down its first indictment for a crime committed during the ballot violence, sentencing an East Timorese man to 12 years for murder. However, because the perpetrator was such a "small fish," the trial served to highlight UNTAET’s limitations in facilitating justice.

Since UNTAET has no jurisdiction beyond East Timor’s border, it is all but powerless to pursue justice for the crimes of last year. On paper, the United Nations and Indonesia have agreed to share evidence and to facilitate extraditions, but it is extremely unlikely that Indonesia would relinquish a military officer or militia leader to UNTAET or to an independent East Timor. In fact, in October UNTAET made a formal request for the Indonesian government to extradite Guterres after the militia leader was arrested on the weapons charge. The request was promptly denied. And, in December, when a team of UN investigators arrived in Indonesia to interview military witnesses, it received a less than warm welcome, with a group of protesters attacking one of their cars. "We will never hand over our soldiers for questioning conducted in the interests of UNTAET,’’ declared Deputy Army Chief of Staff Kiki Syahnakrie during the UN visit.

Given that the United Nations continues to balk at its own investigators’ calls for an international tribunal and that there is little, if any, reason to lend credence to Indonesia’s assurances, East Timor will face not only certain hardship but, in all likelihood, the continued withholding of justice. "As long as the men who killed my brother remain unpunished on the other side of the border," Julio Martins Riverio says softly, " I will feel like my heart is broken. But if they come back and respond to what they have done — why and how they did it — my heart will be able to mend a little."

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