O Jornal (Fall River, MA)

08/16/2005

Judging Timor: Politics interferes with justice

Editor's note: This is the first of a two-part series on the exploits of Judge Phillip Rapoza's mission to East Timor and Haiti.

By Lurdes C. da Silva O Jornal Staff Writer

DARTMOUTH - Under his leadership, the United Nations Special Panels for Serious Crimes finally brought justice to scores of victims of war crimes, murder, genocide and other barbaric atrocities committed against the East Timorese population during a forced annexation by Indonesia. But Judge Phillip Rapoza, of Dartmouth, says that the voices of the survivors and victims may never be heard in many cases because political realities have taken priority over the need for justice.

A few weeks ago, the Associate Justice of the Massachusetts Appeals Court returned to the United States after serving as chief judge on the U.N. Special Panels. He had lived in Díli since the fall of 2003.

"Although there was still work to be done, the Security Council ordered that we close the court in May 2005," he said. "This decision was based on diplomatic considerations and ignored the need to complete the serious crimes process, which should have continued."

Although the court was able to conclude all pending trials prior to the end of its mandate, he said more time was clearly needed to complete the investigations and bring the guilty to task.

"I strongly believe that the Security Council's decision to close the Special Panels was ill-advised," he said. "Consequently, many of those responsible for crimes against humanity and other serious offenses will never be held accountable for their actions in a court of law. It is widely accepted that approximately 1,400 persons were killed during the violence in 1999 alone. Yet the 95 indictments filed with the court accounted for only 572 of those murders. This means that over 800 killings were not accounted for by way of indictment."

It is estimated that in 1999 alone almost 2,000 East Timorese were killed and about 300,000 civilians were driven from their homes and forcibly deported to Indonesia. Up to 80 percent of the buildings in the former Portuguese colony were burned or otherwise destroyed during that period.

According to Rapoza, the judicial independence of the Special Panels was always respected, but nonetheless international politics played a role in determining the scope of the court's authority to act.

"On a day-to-day basis the court was able to exercise its judicial functions free from outside control or interference," he said. "The Special Panels were created by the United Nations and therefore were subject to restrictions imposed by the Security Council."

In fact, in a worldwide publicized case, Rapoza issued an arrest warrant for the former chief of the Indonesian Armed Forces, General Wiranto, who at the time was a candidate for president in Indonesia. He also issued arrest warrants for other Indonesian military leaders.

"We were never given the power to extradite top level military officials from Indonesia, such as General Wiranto, even though we had issued warrants for their arrest," he said.

At the end of the term, Special Panels had tried 87 defendants and issued arrest warrants for more than 300 defendants, most of whom were beyond the court's reach in Indonesia. Indonesia has no extradition agreement with East Timor and it also declined to cooperate with the Special Panels and refused to turn over any of the indicted defendants who were given sanctuary there, Rapoza said.

"The [U.N.] Secretary General [Kofi Annan] sent a Commission of Experts to East Timor to evaluate the operation of the Special Panels and the results were quite favorable," he said. "Yet the Commission also recognized that there is still work to be done. It recommended that Indonesia prosecute the former military leaders responsible for the violence in East Timor or that, alternatively, a new international tribunal be established for that purpose."

But the Indonesians have already stated that they will not conduct such proceedings, Rapoza said.

"[Thus] leaving us with the Commission's proposal that another international tribunal be established to complete this important work," he said. "Unfortunately, there is little support on the Security Council for such a proposal. Hoping to improve its relations with neighboring Indonesia, even the current government in East Timor does not support the establishment of an international tribunal."

As chief judge, Rapoza was responsible for administering the Special Panels and oversaw more than 40 U.N. staffers, including judges and other court personnel. He was the only U.S. judge to serve on the court, which included judges from Portugal, Italy, Germany, Brazil, Cape Verde, Burundi, Sri Lanka and East Timor.

In its final report, the Commission of Experts praised Rapoza for producing a "marked improvement" in the operation and management of the Special Panels. He was credited with a number of reforms in the administration of the tribunal that had a "positive impact" on the court.

In a separate document, the Special Representative of the Secretary General who heads the U.N. mission in East Timor described Rapoza as a "forceful leader on the court whose contribution to the Special Panels has been outstanding" and whose work had been "vital to the serious crimes process reaching a successful conclusion." The Special Representative also noted that Rapoza's "continued strong leadership on the Special Panels" was "crucial to ensuring that the mandate of the Security Council was achieved."

Once the Special Panel's judicial work concluded, Judge Rapoza was asked by the United Nations to take on other missions, but he decided to decline them because they were either more of a diplomatic/administrative nature of they would require a lengthy time commitment that would prevent him from returning to the Massachusetts Appeal Court. Initially, the judge was placed under a one-year non-paid leave from the Appeals Court, but when the United Nations requested that he stay in Dili six more months, Massachusetts legislators and Governor Mitt Romney had to pass special legislation in order to make this possible.

The United Nations then asked Judge Rapoza to head a Criminal Justice Advisory Team to Haiti. There, he lead a team of seven criminal justice experts who traveled throughout the country, inspecting courts and prisons and interviewing those involved in the criminal justice system. In July 2005, he said, the team produced a lengthy report for the Security Council containing an assessment of the Haitian justice system along with detailed proposals for involving the international community in the process of upgrading and enhancing the nation's court system.

As for East Timor, he said the human tragedy there has been overtaken by other crises around the world and the international spotlight is now turned away from that small country.

"It is thus increasingly unlikely that those most responsible for the violence in East Timor will be brought to trial. Tragically, the voices of the survivors and victims will never be heard," he said.

Next week, how the challenge affected the man of justice