Subject: Tempo: East Timor's Hybrid Court

Tempo April 27 - Mei 03, 2004

Cover Story

East Timor's Hybrid Court

By Rachland Nashidik, Impartial Program Director, Indonesian Human Rights Monitor

THE past is catching up with General (ret) Wiranto. The Serious Crimes Unit (SCU) of the Attorney General's Office of East Timor (now Timor Leste) has proposed a legal motion for the arrest of the former defense and security minister/Indonesian Military commander. Wiranto, who was just elected as the Golkar Party presidential candidate, may blame this on a set-up designed by his domestic political rivals. If he adopts this move, it is obviously insufficient to prevent the power of history from depriving him too much of his future life. The only way is to face it right now.

Moreover, SCU's motion was not presented on the day when Wiranto officially became the Golkar Party's presidential candidate. An arrest warrant has actually been sought since February last year. It was after SCU, led by Siri Frigaard, listed Wiranto as suspect of serious crimes in East Timor along with six other Indonesian high-ranking military officers. According to the foreign media, nearly 2,000 people died in a scorched-earth operation believed to have been conducted by militiamen with Jakarta's design and consent following the victory of East Timor's referendum in 1999.

Frigaard's attempt is now carried on by Nicholas Koumjian, new SCU chairman. He is optimistic that the pieces of evidence at his disposal will prompt the Dili District Court to approve the arrest warrant for Wiranto.

If Koumjian's statement is true, this is bad news for Wiranto. He must think twice before deciding to travel abroad. It is because as specified in The Princeton Principles on Universal Jurisdiction, every country is obliged by international law to capture and extradite suspects of serious crimes, including crimes against humanity and war crimes. This obligation binds all signatories to multilateral agreements after World War II, especially the Geneva Convention of 1949. In other words, once the arrest warrant for Wiranto is issued, it cannot be resolved through the dynamics of bilateral relations between Indonesia and East Timor.

From the beginning, Jakarta has failed in exerting pressure on Dili to cancel the legal action against Wiranto. But the SCU in fact cannot just bow to Dili because it is an extension of the United Nations. Originally, the SCU was formed by the United Nations Transitional Authority in East Timor (UNTAET), based on UN Security Council resolution No. 1272 dated October 25, 1999. After East Timor gained freedom, UNTAET was dissolved. However, the SCU was retained by UN Security Council resolution No. 1410 dated May 17, 2002 on the establishment of the United Nations Mission of Support in East Timor (Unmiset). Since then, the UN has assigned the SCU to the East Timor Attorney General's Office. The Chairman of SCU is concurrently the Deputy Attorney General of East Timor.

Apart from the SCU, the UN also set up a Special Panel for Serious Crimes, comprising two international justices and a national judge. It is to the justice panel posted in the Dili District Court that Koumjian addressed his request for approval of Wiranto's arrest.

It is worth noting that by forming the SCU and the special panel, the UN is actually operating a hybrid court in East Timor-like the one being tried out in Cambodia. The internationalized national court is seen as capable of administering fair and independent trials as well as impartial justice, at a lower cost than that in the UN international ad-hoc tribunals in Rwanda and the former Yugoslavia.

What does it mean to Indonesia? We should not forget that the UN once threatened to set up the same international ad-hoc tribunal in Indonesia. But the threat eased off after Jakarta established an East Timor Human Rights Violations Investigating Commission and a human rights tribunal. There is a very slim possibility for the UN to reconsider the formation of an international tribunal for Indonesia, among others for reasons of realism of international ties and very high cost. But the UN apparently cannot only keep silent while the Indonesian court has been unable to break the circle of impunity in the East Timor case. That has made the UN hybrid court's mission the only alternative after its failure to create an international tribunal.

As Defense & Security Minister/TNI Commander in the period of upheaval in East Timor in 1999, Wiranto was not contained on the list of defendants in Indonesia's human rights tribunal. It is just the basic issue today: the absence of exhaustive domestic remedies for Wiranto makes him the most exposed to the mission of the UN hybrid court. The principle of double jeopardy, or ne bis in idem, has no way of leaving him free from the UN judicial threat, because no tribunal in Indonesia has ever exonerated him or found him guilty.

From East Timor, a demand for international justice is lurking inconspicuously. We can oppose it but have no way of preventing it. The only means of ridding Indonesia of the East Timor issue is to let justice find its way. The Indonesian government's obligation is to guarantee the protection and fulfillment of his legal rights in the judicial process so that he can prove his innocence to the maximum.

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