Subject: Judge Rapoza on Serious Crimes Process

The Serious Crimes Process in Timor-Leste: Accomplishments, Challenges and Lessons Learned

Judge Phillip Rapoza*

Special Panels for Serious Crimes

Justice RapozaDelivered on 28 April 2005 in Dili, Timor-Leste at the "International Symposium on UN Peacekeeping Operations In Post-Conflict Timor-Leste: Accomplishments and Lessons Learned"

Sua Ex.a, o Presidente da Republica Sua Ex.a, o Primeiro Ministro Sua Ex.a, o Presidente do Parlamento Nacional Sua Ex.a, o Presidente do Tribunal de Recurso Demais Excelencias Excelentissimos convidados Minhas Senhoras e meus Senhores

Gostaria de comecar os meus comentarios por dizer o quo honrado me sinto por partilhar esta mesa com tantas ilustres individualidades, entre as quais os tres oradores que me precederam. Apesar de eu ser de descendencia Portuguesa e teria todo o orgulho em partilhar convosco as minhas ideias usando a bela lingua de Camoes e Fernando Pessoa, julgo ser mais apropriado fazer hoje uso da minha lingua materna ao expor os meus comentarios.

Your Excellency, the President of the Republic Your Excellency, the Prime Minister Your Excellency, the President of the National Parliament Your Excellent, the President of the Court of Appeals, Excellencies, Distinguished guests, Ladies and Gentlemen

I would like to begin my remarks by stating how honored I am to share this rostrum with so many illustrious individuals, including the three previous speakers. Although I am of Portuguese descent and would be proud to share my thoughts using the beautiful language of Camoes and Fernando Pessoa, I think it best if I use my mother tongue for purposes of my remarks today.

In the brief time that I have this morning I would like to sketch in broad outline the themes that we will be discussing in greater detail this afternoon in the serious crimes working group.

It is especially appropriate that we discuss the serious crimes process in the context of UN peacekeeping operations considering the experience in Timor Leste. Although peacekeeping originally developed as a means to resolve conflicts between States, the end of the Cold War produced a shift in UN peacekeeping to include conflicts within

3 states as well as the use of non-military means to create conditions for a sustainable peace. Thus, in numerous post-conflict societies such as Timor Leste, UN initiatives have been launched to support civil administration, ensure political development and promote economic growth. But with the redefining of peacekeeping operations, priority has also been placed on the need to secure human rights and advance the rule of law. If there can be no peace without justice, then there can be no effective peacekeeping without a judicial component. In this context, the serious crimes process has come into prominence as an integral part of the UN peacekeeping operation in Timor Leste.

Before going any further, I would like to set out a description of what the serious crimes process is, as I am aware that many of you may not have direct familiarity with the concept. Let me start with some background.

When the United Nations Transitional Administration in East Timor (UNTAET) commenced operation in October 1999 it inherited a judicial wasteland. The entire justice system had completely collapsed in the violence of 1999. With the departure of the Indonesian administration almost all personnel who worked within the justice system left the country. This included all the judges, prosecutors and defense lawyers who had operated in East Timor. Even the buildings necessary to maintain law and order such as courthouses, police stations and prisons were all destroyed in the rampage of violence that swept the country.

In sum, when the UN administration entered East Timor - with respect to the legal system - it had to start from zero. Moreover, it was forced to contend not only with the routine matters that come before most courts, but also with a wide range of horrific offenses committed on defenseless people, often by their own neighbors whose political allegiances differed from their own.

While it is beyond my purpose to discuss the reconstruction of the entire legal system in Timor Leste, it is in that context that the serious crimes process arose.

The criminal justice system in Timor Leste contains two components: ordinary crimes and serious crimes. While the term "ordinary crimes" probably requires no further explanation, let me pause to describe what "serious crimes" are, because the term has a specific meaning under the applicable law of Timor Leste.

The term "serious crimes" includes the most severe violations of human rights, including genocide, war crimes, crimes against humanity, murder, sexual offences and torture. The term "serious crimes process" refers generally to legal proceedings involving individuals accused of such offenses to the extent that they occurred during the wave of violence that swept East Timor in 1999. The relevant entities involved include the Special Panels for Serious Crimes (which is the court), the Serious Crimes Unit (which is the office of the prosecutor) and the Defense Lawyers Unit (which represents indigent defendants).

The serious crimes process was founded on the premise that those who were responsible for crimes against humanity and other gross violations of human rights in East Timor should be held accountable for their actions and not enjoy impunity. Thus UNTAET, as the sovereign power in pre-independence East Timor, established each of the units that I have just described and provided them with staff as well as financial and logistical support. The process is a hybrid one, meaning that it operates within the national legal system, but is substantially staffed with international actors, including judges, prosecutors and defense counsel.

The Serious Crimes Unit (or SCU) was established in the year 2000 and the first judges of the Special Panels were appointed at the end of that same year. A somewhat telling fact is that the Defense Lawyers Unit was not opened until September 2002 and did not attain significant staffing until April 2003.

The prosecution arm of the process, the SCU, comes within the Office of the Prosecutor General of Timor Leste and is headed by a Deputy Prosecutor General for Serious Crimes who has always been an international. The role of the SCU is to investigate and prosecute serious crimes throughout the country. In turn, the office is responsible for filing indictments with the Special Panels for Serious Crimes. The SCU has filed 95 indictments charging 391 persons with serious crimes. As some accused appear in more than one indictment, the total number of defendants is 440.

The Special Panels conduct all legal proceedings with respect to the indictments that have been filed. Trials are conducted by three-judge panels consisting of two international judges and one Timorese judge. 101 defendants

6 have come before the court: 87 were tried to a verdict, 13 had their cases withdrawn or dismissed and 1 was found not mentally competent to stand trial. Doing the math, this means that 339 defendants have not come before the court, presumably because they are outside the country. As Timorese law does not permit trials in absentia, the only defendants who can be tried are those who are actually present before the Court. In the absence of an extradition treaty with Indonesia, where the overwhelming majority of absent defendants are located, no prosecutions can proceed in these cases. Nonetheless, the Special Panels have issued 263 arrest warrants and are currently deliberating on another 22 requests by the SCU that will be ruled upon before the Court closes.

The Defense Lawyers Unit, in turn, provides legal representation for virtually every defendant who comes before the Court, because almost every such person is without the financial means to hire his own lawyer. The Unit has slowly evolved to the point where it is now possible to speak of the "equality of arms" between the prosecution and the defense.

The serious crimes process that I have just outlined is unique for a very particular reason. Not only was it the first of its kind in the world to open, but also it is the first of its kind to close. In 2004, the Security Council in Resolution 1543 ordered that its support for all three entities in the process would end on 20 May 2005. In the intervening period, the Security Council ordered the SCU to stop all investigations in November 2004 (which it did) and directed the Special Panels to complete all trials by 20 May 2005 (which it has).

The significance of this fact is illustrated by the following statistic: It is widely accepted that approximately 1400 persons were killed in the violence of 1999. Yet the 95 indictments that have been filed only account for 572 of those murders. This means that over 800 killings remain to be accounted for by way of indictment. Similar statistics are not available for other serious crimes such as the many rapes committed during the violence of 1999, but they are likely to be even higher for such offenses. Nonetheless, in the face of Security Council Resolution 1543, no further investigations, no further indictments and no further trials will be conducted, at least not with UN support in its current form.

The lesson to be learned from these numbers, ladies and gentlemen, is that the job is not done. A large number of those responsible for the serious crimes of 1999 have not been held accountable for their actions. As a result, the fight against impunity is not over, although the forces of justice are being withdrawn from the field.

It is not clear whether the Commission of Experts will propose a continuation of the process, but until some affirmative action is taken by the Security Council in this respect, the serious crimes process is about to close.

In the time I have remaining, I would like to touch on some of the accomplishments achieved by the serious crimes process as well as some of the challenges that it has faced.

In terms of accomplishments, the following I think are fundamental:

1. Establishing_ the_ facts and creating__ an_ historical record - The investigative work of the SCU, the resulting indictments, and the numerous, lengthy trials conducted before the Special Panels, have made a significant contribution to establishing the facts and creating an historical record concerning the events of 1999 and the many crimes committed during that time. Not only have they detailed perhaps the most trying period in this country's history, but they have also illustrated the suffering of many of its victims. In so doing, the serious crimes process has provided them a voice and given them a face -- a significant step in humanizing the tragedy of 1999.

2. Doing justice for the victims - If it is important to acknowledge the victims of 1999, it is equally important to name names when it comes to those responsible for the crimes committed at that time, especially at the local level. Every serious crime had a direct perpetrator, meaning the person who pulled the trigger, swung the sword or beat the life out of his victim. Justice is done for the victims and their families when such perpetrators are charged and tried for their crimes. Although not all offenders have been brought to justice, many have and that fact alone brings closure for the many victims who only want to know that they and their loved ones are valued by a system that is prepared to try their assailants.

3. Justice cannot be done unless it is done for the accused as well as for his accuser - The Special Panels, consisting of both national and international judges, bring an important level of impartiality to the process of doing justice. Moreover, with a more robust defense unit in place, it can be said that both trials and resulting verdicts can be arrived at fairly. Moreover, the serious crimes process has ensured that a necessary international standard of due process is applied to the task of accomplishing justice.

4. National reconciliation and restoration of peace - Peace and reconciliation cannot be achieved when there are those who would take the law into their own hands. Thus, the prosecution and punishment of the perpetrators of serious crimes committed in East Timor in 1999 promotes national reconciliation and the restoration of peace by bringing closure to cases from the past, discouraging private retribution and confirming the importance of the rule of law. If the justice that has been done by the serious crimes process has not always been perfect it has always been better than the alternative, which is to leave the festering wounds of the past unhealed.

5. Deterrence of future offenders - A final purpose served by the serious crimes process is to deter those who could commit serious crimes in the future.

Although the situation is now peaceful and I trust will continue to be so, a powerful message is sent to possible future offenders when those responsible for the violence of 1999 are pursued, prosecuted and punished.

On the other hand numerous challenges have arisen as well. As one might imagine, a primary one has been the lack of adequate resources at every stage and every level of the serious crimes process. The international community, in its desire to do justice quickly and inexpensively, established a legal structure, which at critical junctures lacked adequate staff, funds and logistical support. If nothing else, it was often a case of too little too late. The imbalance in the resources allocated to the prosecution, defense and the court was also frequently evident.

But in my mind the greatest challenge to confront the serious crimes process relates to the lack of direction provided by its founders concerning the purpose of the process. In other words: What kind of "process" was the serious crimes process supposed to be?

This question is particularly significant when considering the serious crimes process as an enterprise attached to a peacekeeping operation. Perhaps the foremost analysis of UN peacekeeping to date, the so-called Brahimi Report, made very clear that the most important feature of any peacekeeping operation should be that its mandate must be clear. I would suggest that this same criterion should be applied to the serious crimes process itself. To ask whether the mandate of the serious crimes process was clear from the start is to define the major significant challenge that has emerged.

When the serious crimes process was first established in 2000, the regulations that brought it into effect did not provide any indication as to the level and nature of suspects intended for prosecution and trial. The substantive law put in place by UNTAET did an admirable job of detailing and defining the serious criminal offences over which the Special Panels would have jurisdiction and which the SCU could prosecute. Moreover, the law permitted the prosecution of defendants both for command responsibility and individual criminal responsibility.

Nonetheless, there was no enabling statute or other regulation stating whether the purpose of the serious crimes process was to target those individuals who were "most responsible" for the commission of serious crimes in 1999 or persons operating at some lower level. Consequently, the door was left open to the prosecution of any defendant who had allegedly committed any offense, with no formal attempt being made to prioritize cases against those in positions of leadership or command.

This is significant because other so-called hybrid courts have been given substantial direction in this respect. In the case of the Special Court for Sierra Leone, the tribunal's enabling Statute states that the court shall "have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law." Similarly, in Cambodia the clear mandate is to bring to trial "senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations" of law. Perhaps the precision of these mandates reflects a lesson already learned from the experience of the serious crimes process in Timor Leste.

The failure to provide a clear focus to the serious crimes mandate in East Timor was crucial, as it meant that there was no distinct picture of what model the serious crimes process was to resemble. Was it to operate like the ICTY in The Hague or the ICTR in Arusha and be held to the same demanding standards? Or was it more in the nature of the process in Kosovo where international judges sit within the national judicial system and render justice in criminal cases including, but not limited to, serious crimes.

This is a fundamental question because knowing the model for the serious crimes process permits us to determine what our expectations for that process should be. If nothing else, it would permit us to make informed decisions concerning the criteria that we should use to measure its performance.

I am reminded of a comment - I believe it was of Winston Churchill. When he overheard the platitude "Life is difficult" he replied "Compared to what?" The same applies to the entire serious crimes process. Has it succeeded? We could reasonably respond, "Compared to what?"

If the process was intended to bring high-level command figures to trial, as Milosovic has been brought to trial before the ICTY, then - in that respect -- it has not been successful. Lacking an extradition agreement with Indonesia and in the absence of a clear mandate matched by the political will to act, the serious crimes process cannot, in the present circumstances, achieve that goal. In this sense, justice, with a capital "J" has not been done.

If, on the other hand, the process was never intended to focus simply on offenders at that senior level, then I would suggest that it has been a relative success. The criticism that is often heard is that the serious crimes process has caught only the small fish, while the large ones have been able to swim free. Although there is a basis for such a statement, the degree of success that has been demonstrated with the direct perpetrators of serious criminal offenses is noteworthy.

As I have already mentioned, the serious crimes process has made significant headway in holding accountable direct perpetrators of serious crimes and other violations of human rights in East Timor in 1999. These cases at the local level are important no only to ensure that justice is done, but to see that closure is brought to such matters that are capable of causing so much pain to so many. It is at this local level that serious crimes become personal and no society can long tolerate a situation where perpetrators and their victims must continue to live side by side without addressing what happened between them.

For less serious offenses, the CAVR's reconciliation process has done admirable work, but for serious crimes outside the scope of that process, the formal judicial process must be allowed to do its job. In this way it can help ensure that peace is restored at the local level, that private retribution and retaliation are discouraged and that the rule of law is itself vindicated. In a broader sense, such a process paves the way for a genuine national reconciliation in which the offenders are held accountable and pay their debt to society while the pain of their victims is acknowledged. Only with such closure can people move on and the serious crimes process has been instrumental in seeing that this is accomplished.

I am very proud of everyone who has participated in the serious crimes process and not just those serving at the Special Panels. There is a remarkable level of dedication to the job we have to do, which is especially admirable in light of the vagaries of international and national support on both a political and logistical level. In many ways, the process has evolved through the application of hard work more so than the availability of abundant resources.

Perhaps it has been late in coming, but I believe that the serious crimes process has achieved a level of functioning that permits us, perhaps for the first time, to do the job given to us five years ago. In that sense it is a shame to bring this effort to a close when it is doing its best work and is poised to do even more. Time will tell whether the UN Commission of Experts will make a recommendation in this regard, but for my part, I am proud to have served in the serious crimes process and to have been part of this noble endeavor.

 

* Hon. Phillip Rapoza is a Justice of the Massachusetts Appeals Court and has previously served as a trial judge, prosecutor and defense counsel. He holds a BA degree from Yale University and a Juris Doctor degree from Cornell University School of Law. He joined the Special Panels for Serious Crimes in December 2003 and is the chief judge of the Court under the title Coordinator. Judge Rapoza, who is of Portuguese descent, has extensive experience in comparative law and has been a leader in developing closer ties between the legal systems of Portugal and the United States. In 2002 President Jorge Sampaio of Portugal recognized his contributions in the legal field and awarded him the degree of Commander (Comendador) in the Order of Prince Henry the Navigator (Ordem do Infante D. Henrique).

 

see also Human Rights & Justice pages


Back to May menu 
April   
World Leaders Contact List
Main Postings Menu