The Indonesian Tribunal: A Matter of Justice or Political Diversion? By James Dunn AM

At last Indonesia's human rights tribunal has begun passing verdicts on the 18 accused who have appeared before it. The first to be sentenced was Abilio Soares, the last Governor of East Timor under Indonesian rule. Six other officers, including the Polri Chief, Brigadier General Timbul Silaen and Colonel Sediono have been acquitted. Sediono's acquittal is astonishing. This Kopassus officer was identified by several eyewitnesses as one of those giving orders at the attack on the church at Suai. In the circumstances the sentence imposed on Abilio Soares (if it withstands appeal) is more appropriate, but the terms in which it was delivered are deeply troubling. Soares was accused of having permitted the violence, not of having played a role in organising it. In an extraordinary move, nor was this charge laid against the TNI officers

This tribunal was promised soon after Wahid assumed the Indonesian presidency, the case for a trial having been reinforced in a damning report on the events of 1999 by a special Indonesian human rights commission team (KPP HAM). However, it was not a popular decision with most of Jakarta's politicians, many of whom still had a smouldering resentment at the humiliating loss of East Timor to the Republic. It was a resentment based on a serious misunderstanding, on the distorted TNI accounts of what lay behind the violence that erupted in East Timor in 1999, and who was responsible.

The proposal for a tribunal was strongly resisted by leading TNI generals from the outset, for it was bound to increase popular demands for a comprehensive reform of Indonesia's armed forces. However, thanks to international pressure and demands from Indonesia's courageous NGOs, those most concerned at the TNI's capacity to evade the promised reforms, an Indonesian special court was at last established - though only after long delays, with obvious reluctance, and with a limited mandate.

The outcome of this tribunal is of greater importance than has been generally acknowledged. The first concern is of course justice for the victims, the people of East Timor where, in a highly organised operation in September 1999, 74% of all buildings and houses were destroyed or severely damaged, and well over half the population was deported or forced to flee to the mountains. In the months leading up to the InterFET intrusion, more than 1,000 East Timorese were murdered, and many others became victims of torture or sexual assault.

The outcome of these trials will have a wide-ranging impact. In the first instance it will have an impact on Indonesia's relations with the new Democratic Republic of East Timor, as well as on the Canberra-Jakarta relationship. If the tribunal were to lead to a full exposure of the TNI's role in setting up the militia, it would follow that the UN and Australia would be exonerated from blame for the loss of Indonesia's 27th province. It would confront the Indonesian political establishment, and also the regional Southeast Asian community with the indisputable facts, raising the curtain, as it were, on the TNI's brutal past. At this point the prospects of such a revelation are not good. By confining its investigations to a period between April and September 1999, the tribunal's terms of reference seemed to have closed off the trail of responsibility, shielding those senior generals who set up the militia as an instrument of violent intimidation.

The tribunal has been dealing with four specific crimes against humanity that were committed between April and September 1999. Many Timorese were killed before April, and some even after the InterFET arrival. Two of the worst killings, the brutal Maliana atrocity, and the Oecussi massacre, in which TNI officers played leading roles, were not been brought to the attention of the Tribunal, although TNI officers played key roles in these assaults.

The TNI officers who appeared before the Tribunal were confined to a handful of senior officers the most senior being the regional (Udayana) commander, Major General Adam Damiri, Brigadier General (now major general) Mahidin Simbolon, the East Timor territorial commander, Colonel Tono Suratman (now a brigadier general) and Police Chief Timbul Silaen (who has also been promoted). Key generals, Major General Syafrei Syamsuddin, who drew up the plans for the militia para-military force, and Major General Zacky Anwar Makarim, who acted as the link between the field operations and TNI headquarters, were not on the list of indictments. Nor was Major General Hendropriyono, now Indonesia's intelligence chief, who played an important role in relation to intelligence aspects of the TNI's militia operation. And there are other senior officers who have apparently been allowed to escape the net. Little attention has being given to Major General Mahidin Simbolon, who played a key organizational in the TNI led campaign of massive destruction that followed the declaration of the results of the plebiscite on 4 September 1999. Simbolon is currently Indonesia's military commander in West Papua, the appointment to this sensitive post suggesting that the Indonesian military command did not take the charges against him seriously. Although these officers, and General Wiranto himself, were implicated in the findings of the original Indonesian Human Rights Commission (KPP HAM) report, they were apparently excluded by the Tribunal's prosecutors. To have included them would have implicated Indonesia's top military commanders in this conspiracy to sabotage the UN monitored plebiscite, if you like, this act of state terrorism.

Understandably, there is considerable scepticism, within Indonesia as well as abroad, about what this tribunal will achieve. None of its panel of judges was an expert on crimes against humanity law. They are mostly academic lawyers with little practical experience. Nor were there human rights specialists among the large team of prosecutors. Exploiting, it would seem, these professional shortcomings, the TNI general staff has engaged in an exercise of blatant intimidation, with senior officers, including the head of Kopassus (the special forces which played a key role in the conspiracy) turning up in strength at the tribunal sessions, as a mark of support for the indicted military officers. As if that was not enough, a band of noisy followers of Eurico Guterres from time to time demonstrated outside the court. This behaviour seemed designed to minimise the risk that the outcome of the tribunal would harm the standing of the military whose role in Indonesian society has been under close scrutiny.

The proceedings and outcome of this tribunal raises some concerns for Australia. Defence lawyers persistently argued that the TNI were merely responding to an international conspiracy to mislead the East Timorese people, and detach the territory from Indonesia. The UN intervention had provoked conflict between Timorese groups, so the arguments went. It was also claimed that it was the UN and not the Indonesian military that was responsible for security; an absurd and cynical claim in the light of persistent Indonesian refusals (from Wiranto himself) to allow in a peacekeeping force at that time. Prosecution arguments also followed these lines, so that the thrust of the charges was not that the defendants were behind the abuses, but that they had failed to prevent them from taking place. If the tribunal outcome reflects this line of argument, it will hardly resolve the issue; nor will it be conducive to an improvement of relations between Canberra and Jakarta. As this strategy hinges on blaming international interference for the events of 1999, Australia could end up being tagged the scapegoat of the affair, with the grievances so carefully nourished by the TNI being formally endorsed. It would be a shameful slight on the work of the United Nations, especially UNAMET which was meticulous in the carrying out of its mandate, under difficult and provocative conditions. Indeed, the legitimacy of the entire UN intervention could be called into question.

It was my conclusion, on the basis of compelling evidence, that East Timor's notorious militia operation was essentially a conspiracy engineered by senior Kopassus officers. It was an operation that enjoyed Wiranto's knowledge and approval, if not his direct involvement. It is important that the Indonesian political establishment - and the international community at large - face up to the existence of this conspiracy and find some way of exposing those responsible, if the Jakarta Tribunal fails to expose what was a campaign of state terrorism. If Indonesia's military command, and Kopassus, with its appalling past record of human rights abuses, is untouched by the Tribunal's findings, it could pose a serious setback to democracy in Indonesia, and to regional security. For this reason we need to keep some form of international tribunal on the agenda, so that this serious case of state terrorism can be properly investigated in order to clear the air. In view of the difficulty in getting agreement by the Security Council to a trial process, perhaps the best answer would be to set up a tribunal in the form of a judicial enquiry (rather like our royal commission) with the aim of producing a substantive report on what crimes against humanity were committed in 1999, and on those responsible for them. It might not be possible to bring those indicted to trial, but it would impact on their careers and their standing in their home country where there is continuing public pressure to bring the military under tighter control. It would also serve as an authoritative international statement on the affair, put pressure on the Government of Indonesia to reconsider its findings and at least those responsible for this campaign of terrorism would be exposed to the international community, as well as the political establishment in Indonesia.

The UN intervention in East Timor has been one of the world body's most significant achievements. Surely, therefore, we cannot let the matter rest with the unacceptable outcome of the Indonesian tribunal. It is necessary as a matter of justice for those Timorese who have suffered, but it is also important to clear up any doubts about the role of the United Nations in facilitating this self-determination process, the highly commendable role UN agencies have played in bringing justice and peace to East Timor, after 24 years of harsh occupation. The case is even stronger for East Timor, if the new nation is to develop an enduring harmonious relationship with its large neighbour. That relationship needs as its foundation a mutual acceptance of the way events involving both countries have unfolded since 1975.

James Dunn UNTAET's Expert on Crimes Against Humanity in East Timor, 2000-2001. 17 August 2002

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