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From: JUSTICE AND ACCOUNTABILITY IN EAST TIMOR: INTERNATIONAL TRIBUNALS AND OTHER OPTIONS
Report of a one-day seminar in Dili, East Timor
16 October 2001

Prosecution of Crimes under an International Justice Process

By Joaquim Fonseca, Yayasan HAK

Since the end of the Second World War, the perspective of humanity about humanitarianism and human rights has entered a new chapter. The enormous human suffering brought about during this war encouraged various countries to search for effective measures to prevent the use of violence in resolving conflicts1, or at least minimize the impact of violence on citizens. These measures were instituted through a series of international agreements, beginning with the Geneva Convention of 1948 and made effective on 12 August 1949. Subsequently, certain actions have been declared to be war crimes and crimes against humanity.

Crimes against Humanity

This term was first used following the massacre of Armenian people by Turks in 1915 during the First World War. However the concept beyond this term only became defined after the Second World War with the establishment of the International Military Tribunal in Nuremberg to try the even more horrendous mass killings of Jews by Nazis. According to Article 2 of the Geneva Convention concerning Protection of Civilians during wartime, Crimes against Humanity include but are not limited to the following offences:

According to Article 3 of the Geneva Convention, concerning Protection of Victims of War, together with its Supplementary Protocol of 8 June 1977, Crimes against Humanity include but are not limited to the following offences:

War Crimes

These are crimes in breach of conventions on the protection of civilians and prisoners of war during wartime.

Genocide

The Geneva Convention of 9 December 1948 concerning the Prevention and Punishment of Genocide defines Genocide as actions that are carried out with the aim of eradicating all or part of those people identified as belonging to a national grouping, ethnicity, race or religion in the following ways:

The first International Tribunals

Although the above actions have been classified as crimes against humanity and war crimes, initially there were no mechanisms for bring those who commit such crimes to account. However a number of international mechanisms with special jurisdictions have since been established to uphold various international conventions, making those who commit such offences accountable for their actions. Based on Chapter VII of the United Nations Charter, the Security Council is able to establish tribunals to try those who commit crimes against humanity. The character of these tribunals varies, based on the context in which they were set up, but essentially all these tribunals are formed with the aim of accountability for crimes committed during wartime. These tribunals have also led to broadening of what constitutes such criminal acts.

1. Nuremberg

The International Military Tribunal in Nuremberg was formed in order to prosecute crimes committed by German soldiers and officials during the Second World War. The Tribunal was founded on the basis of the Nuremberg Charter when the recently formed United Nations still lacked resources. Consequently, the Nuremberg Tribunal was established and conducted by the allied powers. Although this tribunal appears to have served as an instrument of the war’s victors to punish the vanquished, the stated aim of its formation was to set the historical record straight, to assist in the formulation of determinations of international law and to prevent future leaders from committing similar offences.

The Nuremberg Tribunal was followed by the establishment of an International Military Tribunal in Tokyo, also to handle crimes committed during World War Two. These two tribunals lay the foundation for crimes for which individuals can be brought to account. These tribunals established that: 1) the most senior leaders of a state are not immune from prosecution; 2) the plea of following orders is not an effective means of avoiding prosecution, even though it can become a mitigating circumstance in sentencing; 3) conspiring parties can be considered to have been involved in certain kinds of crimes.

The decisions handed down by these two tribunals lay the foundation of command responsibility for crimes against humanity and war crimes.

2. Yugoslavia and Rwanda

Almost half a century after the formation of the International Military Tribunal in Nuremberg and Tokyo, mass and systematic violence, killing of civilians including genocide were committed against people in Kosovo and Rwanda. The so-called ethnic cleansing perpetuated in these places was a repetition of similar actions carried out by Nazis against Jews. Two separate tribunals were formed under UN auspices to prosecute genocide and crimes against humanity in these two territories. The statute to establish an International Tribunal for crimes committed in the territories of the former Yugoslavia was brought into effect on 25 May 1993 and amended on 13 May 1998.

Whereas the tribunal applying to Rwanda to prosecute perpetrators of genocide and other breaches of international law committed between 1 January and 31 December 1994 was mandated by UN Security Council Resolution 955 (1994) of 8 November 1994, which applied not only to crimes committed in Rwanda itself but also in the adjacent territories of neighbouring countries. This tribunal was formed to underpin the reconciliation process in Rwanda and to provide the basis for regional peace. Security Council Resolution 978 (1995) established this Tribunal in Arusha, Tanzania.

3. Other mechanisms

Crimes against humanity are not restricted to the crimes described above. A number of conflicts resulting in the loss of many lives have not been resolved through international means. The Khmer Rouge’s killing of one million people in Cambodia, the crimes committed in Sierra Leone, and the destruction of East Timor at the hands of the Indonesian Armed Forces and pro-Indonesian militia are three such examples.

In Cambodia and Sierra Leone, what some people refer to as a semi-international judicial process is currently being introduced. Such a mechanism can work in these territories, since most of the perpetrators of the crimes concerned remain within those countries’ borders, and there are other special circumstances conducive to such a process. However, this variation may not be suitable in other contexts.

4. Accountability for Crimes in Timor Lorosae?

Almost all the crimes perpetrated by the Indonesian Armed Forces and the pro-Indonesian militia in 1999 up until the intervention of the multinational force, and subsequently perpetrated in West Timor, constitute criminal acts in contravention of international norms. Soon after the destruction carried out in 1999, calls came from many quarters demanding the establishment of an International Tribunal to try those responsible for planning, organising and carrying out this destruction. In addition to calls from various NGOs and groups in solidarity with East Timor overseas, the report of the International Investigating Commission set up by the United Nations also recommended the same course of action, based on the conclusion that the crimes committed in East Timor in 1999 can be categorised as genocide and widespread and systematic crimes against humanity.

Furthermore, an investigating commission set up by the National Human Rights Commission of Indonesia also came to the same conclusion. Meanwhile, in the midst of strident condemnation and calls for an International Tribunal, the Indonesian government decided to form an ad hoc Tribunal to prosecute people responsible for these crimes. Even though the Indonesian legislature has confirmed the government’s decision and passed legislation to establish this court, the ad hoc Tribunal is still yet to be formed. Because corruption in Indonesian judicial institutions is endemic, there are difficulties in recruiting judges and prosecutors able to lend credibility to this tribunal. At present there is an attempt to recruit prosecutors and judges from among credible circles in NGOs and academe. Meanwhile, even before the judges and prosecutors have been recruited, the jurisdiction of the tribunal has been constricted, both in terms of time period and locations covered. Given these circumstances, there seems little hope that the perpetrators will be brought to account or that justice will be served for the victims of the crimes committed against them and their families through due process in Indonesia. Meanwhile, UNTAET has established a special panel of judges in the Dili District Court to hear cases of serious crime under the special jurisdiction to try those people present in East Timor who are charged with committing serious crimes in 1999. The extent to which this special panel provides justice is a matter for debate, but one thing a court in Dili cannot do, no matter how ‘special’ its jurisdiction, is to make the architects of the destruction of East Timor accountable.

An International Tribunal for East Timor?

This question is often rather sarcastically treated by people who disregard the people of East Timor’s sense of fairness and calls for justice. A great many excuses for why an international tribunal cannot or should not be established are thrown up, beginning with financial limitations to fund such a tribunal right through to paternalistic claims that the people of East Timor only want peace and the reconciliation of a handshake.

Such excuses as these are a true reflection of the current political environment, where other interests are being given greater priority than the interests of justice for the people of East Timor. Consequently, any discussions undertaken about establishing an international tribunal for East Timor necessarily imply the hard work ahead of public campaigning, along with preparing strong arguments to refute the various excuses given for not holding an international tribunal, namely the economic arguments and those dealing with the politics of peace and artificial reconciliation.

There are several compelling reasons for demanding an International Tribunal for East Timor:

1. It is only an International Tribunal that has jurisdiction over the senior Indonesian military officers who designed the destruction of East Timor in 1999.

2. The prosecution of these senior Indonesian military officers and other perpetrators will put the Hidden and Forgotten War that Indonesia waged against the people of East Timor on the historical record for Indonesia and East Timor.

3. An International Tribunal would promote reconciliation among East Timorese. At present villagers are only able to identify rank and file militia people who may have committed a number of crimes in following the orders of their superiors. The people’s concentration is thus being focused upon other East Timorese people, to whom their anger and possibly their desire for vengeance is also being directed. In other words, conflicts inherited from Indonesia have been quarantined in East Timor where they are gnawing at the social fabric and sense of solidarity among East Timorese. People are unable to perceive the events of 1999 as anything more than the actions of the rank and file militia. An International Tribunal that demands accountability of senior Indonesian officers would assist the people to appreciate the reality that it is actually a criminal organisation called TNI, the Indonesian Armed Forces, who had the primary responsibility for the destruction wrought upon East Timor.

4. An International Tribunal would prevent the same kind of actions occurring in the future. An independent East Timor is not going to change the geographical reality of it being adjacent to Indonesia. For this reason, senior Indonesian military officers need to be subject to the force of international law, so that they will never again impose themselves upon this tiny country to fulfil their territorial ambitions through the use of force.

Note

1 This greatly contrasts with the approach taken by the United States towards Afghanistan half a century later.

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La'o Hamutuk, The East Timor Institute for Reconstruction Monitoring and Analysis

International contact: +1-510-643-4507, lh@etan.org

Website: www.etan.org/lh