Subject: Dealing with War Crimes in East Timor, and the TNI's Rehabilitation

Dealing with War Crimes in East Timor, and the TNIís Rehabilitation

James Dunn AM

The Bush Administrationís decision to restore links with the Indonesian military, now endorsed by Australia, is a hasty move, one that should have been delayed until there was clear evidence of progress in bringing to account the TNI commanders responsible for crimes against humanity in East Timor. This extremely serious matter has become submerged in the spirit of goodwill that surfaced in the wake of the tsunami tragedy. There are two encouraging moves in this direction, but they require independent international scrutiny and support, if they are to clear the air on one of the most disturbing cases of its kind in recent history.

At the instigation of East Timorese leaders, a joint Indonesian-Timorese Truth and Reconciliation Commission is now being set up to consider the violence and bloodshed of 1999. Of critical importance at this juncture is Kofi Annanís appointment of a UN Committee of Experts to examine and report to him on the events of 1999, and at the role the Truth and Reconciliation Commission. Annan has chosen Justice Bhagwati, a former Indian Chief Justice, and human rights advocate; Yozo Yokota, a distinguished international law professor and International Commission of Jurists official; and Ms Shaista Shameem, director of Fijiís Human Rights Commission. The idea of this commission has been around for some time. In fact Sergio Vieira de Mello discussed the idea with me in 2001 (in my role as a UN consultant on Crimes Against Humanity in East Timor), when it clear to us that the Security Council was unlikely to agree to another ad-hoc tribunal for the East Timor case. The report of the Experts will determine the shape of future action by the Secretary General.

The UN move, which was delayed by Sergio de Melloís assassination in Baghdad, should be given a chance before there are moves to absolve the TNIís responsibility for gross human rights abuses. There have of course been some positive developments in this direction. With the change in Indonesiaís leadership, human rights and democratic reform have gained a higher profile in Indonesia. Also the new climate of reconciliation and goodwill between Timorese and Indonesian leaders has led to an agreement between them for the joint truth and reconciliation commission. This move was, however, accompanied by calls from both Indonesian and Timor Leste leaders for an end to further UN involvement in this matter. The idea of a commission is quite a daring one, but it is hard not to be pessimistic about its outcome. Will its sessions be held in public? Will TNI officers be obliged to appear before it and, if so, will they testify freely and uninhibitedly? Will the Commission confine itself to events in 1999, which would mean dealing with the symptoms and not the disease? Can we really expect TNI officers to disclose the truth, when the outcome could ruin their careers, and discredit their service? And how will the Commission assess and pass judgment on their testimonies?

This commission represents an approach that has long been vigorously pursued by President Xanana Gusmao, but I have grave misgivings about its capacity to unravel the truth, and identify the responsibility of individuals and the culture that is reportedly still evident in TNI behaviour towards the forces of dissent. Timorese skepticism towards international legal proceedings is understandable enough, and the joint commission idea could turn out to be a useful way of resolving the underlying political differences, as they may surface at political and diplomatic levels. It does not appear, however, to present an acceptable answer in terms of international law and human rights. What transpired in East Timor after the invasion of 1975, and especially in 1999, involves serious atrocities, for which those responsible should not be granted impunity in a compromise settlement between Timorese and Indonesian leaders.

In the final analysis public exposure of those responsible for serious crimes in East Timor is not just about establishing a stable relationship between the new nation and its former occupier. It is of vital importance to democratic reform in Indonesia, a process that simply cannot be fulfilled without identifying and eradicating the culture that had developed within the TNI during the Suharto years, at the cost of human rights abuses against Indonesians as well as East Timorese. This principle was implicit in the unpublished report on events in East Timor by the HANKAM Commission set up by President Wahid. Bringing out the truth about what transpired in Timor Leste is important to an appreciation of the achievement of the United Nations in relation to the birth of the new nation, not to speak of the integrity of international law. Rescuing East Timor and guiding it towards independence was an outstanding achievement of the world body, especially of its Secretary General, Kofi Annan. To discount that achievement is tantamount to discounting the UN system as a whole.

An international tribunal or enquiry of some kind has long been the preferred choice of those of us who have investigated the TNIís past abuses ≠ mostly members of human rights NGOs and UN officials. In the immediate aftermath of the TNIís withdrawal from East Timor, it was very much on the Security Councilís agenda, but international support for such an outcome eased when President Wahid assured the UN that Indonesia would itself hold such a tribunal and bring those responsible to justice. Wahidís good intentions were quickly frustrated by the military, who were able to exploit the nationalist response to the loss of East Timor, which raised the spectre of disintegration; continuing insecurity in Indonesia, and then the terrorism factor. To this, one might add the impact on the Indonesian political establishment of the worldwide Muslim reaction to the US led invasion of Iraq, and the deposing of the secular Iraqi regime, which had enjoyed good relations with its secular counterparts in Jakarta.

By the time the Indonesian human rights tribunal finally took shape under President Megawati Sukarnoputri ≠ an apparently reluctant concession to international pressure - the TNI had recovered much of its lost political influence in the changing political climate. As was widely predicted at the time, that tribunal turned out to be a farce. Only 18 officers were brought before it. A mere handful was found guilty of relatively minor offences, and easily succeeded in their appeals. One of the key accused generals, Major General Adam Damiri, often declined to grace the court with his presence, citing operational exigencies. The only case taken seriously was that of Abilio Soares, the last Timorese governor under Indonesian rule (a relatively minor player in the TNI conspiracy), who spent some time in prison before he, too, was released. The notorious flamboyant militia leader, Eurico Gueterras (who had become head of a youth organization supporting Megawatiís party), was also found guilty but he too continued to enjoy full liberty pending his appeal. The outcome of these trials was deeply troubling, if not intimidating, to the East Timorese, and to the concerned international community. Key commanders of TNI operations in East Timor, and the Kopassus generals who planned and led the brutal militia operation not only escaped the net: several were promoted to key positions ≠ Major General Sjafrei Sjamsuddin, one of the key planners, is now a leading TNI figure; Major General Adam Damiri, the ground commander in Timor when the TNI carried out its campaign of massive destruction, took over TNI operations in Aceh: his deputy, Brigadier General Mahadin Simbolon, was appointed TNI commander in Papua, and promoted major general. These exonerations appear to have give TNI commanders a new confidence in their ability to cover their tracks.

The major crimes committed during 1999 were not really new: they followed the pattern of the gross abuses perpetrated by the military throughout the 24 years of Indonesian rule. The worst of these are comparable to atrocities perpetrated in Africa, the Middle East and former Yugoslavia in the past three decades. The impunity the key players have enjoyed so far stems not from doubts about these crimes, but from the lack of resolve of both the Indonesian political establishment and the international community. To discount these crimes, because of the lack of international will, is manifestly yet another example of the selective approach to war crimes. Nor should they be buried in a deal between East Timorese and Indonesian leaders designed to resolve their legacy of conflict.

For the East Timorese, the acknowledgement of their suffering throughout the Indonesian occupation is a compelling matter of justice. In the four years following the 1975 invasion when up to 200,000 Timorese died, the pattern of killings in East Timor at times took on a genocidal character. The mass killings at Liquica, Suai and Maliana in 1999 shocked the international community because there happened to be a foreign presence in East Timor, but they were only a continuation of the pattern or TNI brutality that began with the invasion of 1975. The worst atrocities were committed in the earlier years of the occupation, when there were no outside witnesses, and international interest in the plight of the East Timorese was insignificant. Hundreds died in mass executions in Dili in December 1975; more than 1,000 at the Creras massacre of 1983, and over 230 at the Santa Cruz massacre in 1991, to name only a select few of these major atrocities.

During this long period, rape and torture of individuals were rampant. Essentially these abuses were systematic in character, reflecting deliberate policies, and manifesting a complete disregard for fundamental human rights. The campaign of violence in 1999 - the subject of the present investigations - which culminated in a highly organized wave of destruction and deportations, was, from the very outset, a carefully planned TNI conspiracy, the brainchild not of pro-integration East Timorese. It was planned by Kopassus generals, determined to obstruct a UN-mission that would risk the loss of the East Timor province to the Republic, an annexation they had spilled blood to bring about in the seventies. Hence it was Kopassus generals who set up the militia in 1998, trained and armed them, and then exhorted their commanders to engage in orgies of violence in order to intimidate the population at large, and scare those involved in UNAMET, the UN mission responsible for organizing the plebiscite. Yet the only persons so far brought to justice were Timorese militia members who were mere tools in these tragic events.

In the circumstances an investigation needs to do more than simply focus on individual atrocities, and those immediately responsible. It is important for command responsibility be identified, in order to determine the origin of orders that led to atrocities, how they were formulated, and how they were delivered and executed. It is also important to establish how senior commanders reacted when killings and other atrocities were carried out. In short it is important to unravel the TNIís brutal culture, to find out how the system worked, and to bring the key players to some form of justice. The latter includes those who failed to take action where atrocities were being perpetrated, as well as those top generals who authorized operations or actions, in situations in which innocent civilians lost their lives. In the last chapter of Indonesian rule it included the destruction of East Timorís infrastructure, and the virtual deportation of a large part of the territoryís population, crimes for which reparations were never seriously considered.

The Indonesian tribunalís prosecutors carefully avoided the above issues, by accusing the few officers to appear before it, merely of having failed to stop the violence; none were charged with having been responsible for it. For the East Timorese it was a cruel farce to see officers like Damiri, Simbolon and Suratnam get off so easily. It was chilling to see the case against the senior TNI officer present at the Suai massacre dropped for Ďlack of evidenceí. As for Major General Zakky Anwar Makarim, a shadowy figure who was a key general in relation to the planning and coordination of the entire operation, he escaped the tribunalís net.

Only in East Timor have the crimes of 1999 been taken at all seriously by the authorities, thanks to the work of the Serious Crimes Unit and the prosecutor-generalís office, which were set up when UNTAET was the administering authority. But the UN process got off to a slow and unsteady start, thanks to poor leadership by the original incumbents of the offices concerned, which was a matter of deep concern to Sergio Vieira de Mello in UNTAETís last year. I discussed this problem with him on several occasions and, at his request, prepared a brief report on it. A senior UN official duly investigated the situation, and the senior officers concerned were removed. Unfortunately, by that time UNTAETís mandate had almost expired. Vieira de Mello understood that, in the final analysis, bringing the military commanders responsible to justice was essentially a political problem. We needed the support of Security Council members for a tribunal, and it was clear that we were unlikely to get it, because key member states lacked enthusiasm for another ad hoc international tribunal. Australia, as a party principal, showed little enthusiasm for it, though it attracted support from countries like Ireland, Norway and New Zealand. At the time it was tempting to conclude that Australiaís leading role in Interfet was only a temporary departure from our official policy of ignoring human rights abuses in Timor. Again the perception was, it seemed, we should avoid doing anything to destabilize Indonesia at a time when the country was going through a painful process of political change, a consideration that still appears to influence Australiaís attitude to this question.

Meanwhile in East Timor when a new prosecutor general was appointed, and the Serious Crimes Unit overhauled, its officers swung into action, but the country was now independent and they soon found themselves in conflict with Timorese leaders, especially President Xanana Gusmao. However, more than 70 militia members have been sentenced to imprisonment for their crimes. Indictments against a number of senior TNI officers were also issued, to the irritation of the Indonesian government, which ignored them. The move also incurred the annoyance of President Xanana Gusmao and other Timorese leaders, who had determined that this whole issue should now be resolved by a process of reconciliation, rather than international justice. Xananaís views were strongly influenced by the South African experience (which involved a political scenario very different from the situation in East Timor), while the reaction of other Timorese leaders reflected a new pragmatism. If the issue were to come before the UN Security Council it would drag on, and present an obstacle to their efforts to establish a harmonious relationship with Jakarta, an objective that increased in importance as relations with Australia cooled over.

At first the Timor Leste government confined itself to opposing the holding of any sort of tribunal in East Timor, as opposed to The Hague or somewhere else. More recently their position has hardened; they now appear to be opposed to any international action. Other Timorese, including top Church officials and, for that matter, a large part of the population at large, are at odds with their government. They are less disposed to accept what appears to be a forgive-and-forget strategy, and continue to call for a resolution of the problem, based on accountability, transparency and justice.

Although the stance taken by Xanana, and other leaders East Timorese leaders ≠ is understandable enough, the Truth and Conciliation Commission is not an appropriate instrument to achieve a solution based on justice, respect for those who suffered the ordeal of loss and physical abuse, and the misery of humiliation. As for the East Timor nation, it was left in ashes by the occupiers. Constructing a civil society as the framework for a democracy was relatively easy. But to fashion a self-sustaining economy out of the devastation inflicted on the nation by the TNI in 1999 has proved to be much more difficult. If it fails Timor Lesteís impressive achievements in democracy will be placed gravely at risk.

Much now depends on these latest moves in relation to events in 1999, and earlier. Present indications are not encouraging. The US and Australian moves to restore relations with Indonesiaís military, and US opposition to the continuation of the UN mission in East Timor suggest a readiness by these governments to consign these past crimes to history, without even having exposed them to international scrutiny. With the mood change in Canberra and Jakarta, and the eagerness of the Timorese leaders to dispose of the issue, the truth behind one of the worst episodes of its kind could fade into historical obscurity, with serious consequences for the future. Indonesia will have failed to address a military culture that continues to obstruct progress to democratic reform. Its political establishment will have ignored the terrible suffering the TNI inflicted on the people of East Timor. The fiction ≠ still commonly believed by many in Indonesian military and political establishments ≠ that Indonesia had a right to be in East Timor, and was wrongly forced to cede the province could still threaten the new nationís security. It will diminish the role of the United Nations, and the great contribution of the late Sergio Vieira de Mello, in transforming East Timor from the devastation of October 1999 to an independent state. Not least for the long-suffering East Timorese people justice will not have been done.

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