May 20, 2003
Dear Member of the Security Council
As the Democratic Republic of Timor-Leste celebrates the first anniversary of its independence, we are writing to urge you to establish an international tribunal to try the war crimes, crimes against humanity and genocide committed in East Timor from 1975 onward.
The trials in Indonesia's Ad Hoc Court on Human Rights for East Timor are coming to an end. Whatever the outcome of the last trials, members of the Security Council will have important decisions to make concerning justice for East Timor.
The International Federation for East Timor and a wide range of others believe that an international tribunal is essential to punish past violence and deter future violence against the people of East Timor, Indonesia and UN personnel. Effective justice in this case would remind aggressors across the globe that they are not beyond the reach of law; inaction would send a truly dangerous message.
Timor-Leste's Prime Minister Mari Alkatiri recently said, "Crimes against humanity must be judged ... and the international community has primary responsibility... We cannot just ignore crimes against humanity, which are the gravest of crimes, yet take petty thieves to court. It would be a travesty of justice."
In defiance of UN resolutions, East Timor's right to self-determination was blocked by Indonesia's 1975 invasion and subsequent brutal occupation. Following political changes in 1998, Indonesia accepted a "consultation" of the people of East Timor. However, Indonesia demanded that it alone be responsible for the territory's security during the ballot. The acceptance of this demand led to the murder of hundreds of East Timorese, the displacement of two-thirds of the population, and the thorough destruction of the country.
Reports by UN Human Rights Commission special rapporteurs (A/54/660 10 December 1999) and by the UN International Commission of Inquiry (A/54/726, S/2000/59 31 January 2000) make clear that the crimes committed in 1999 would not have been possible without planning and action at the highest levels of the Indonesian government and military. The Commission of Inquiry "concluded that there were patterns of gross violations of human rights and breaches of humanitarian law which varied over time and took the form of systematic and widespread intimidation, humiliation and terror, destruction of property, violence against women and displacement of people. Patterns were also found relating to the destruction of evidence and the involvement of the Indonesian Army (TNI) and the militias in the violations."
The Serious Crimes Investigative Unit (SCU), set up under UNTAET, found evidence credible enough to issue indictments of high-ranking military officers, including General Wiranto, Minister of Defense and Commander of the Armed Forces of Indonesia in 1999, for crimes against humanity, murder, deportation and persecution. But justice has been denied in this venue, as Indonesia has stated it will not cooperate with the SCU.
The special rapporteurs and the commission of inquiry felt that the Indonesian court would be unable to bring those responsible to justice and recommended the setting up of an international tribunal. However, trusting in the positive preliminary work of the Indonesian Commission of Inquiry (KPP-HAM), the UN Security Council called upon Indonesia to bring the perpetrators to justice "as soon as possible" and to "institute a swift, comprehensive, effective and transparent legal process, in conformity with international standards of justice and due process of law." (S/2000/137, Letter dated February 18, 2000 from the president of the Security Council to the secretary-general on the report of the International Commission of Inquiry of East Timor)
As we feared, that process has been unable to overcome its inherent flaws. Criticisms of Indonesia's ad hoc Human Rights Court for East Timor are legion. The executive director of the leading Indonesian human rights group ELSAM has called the tribunal defective from the outset and said he is not surprised that it failed to bring the perpetrators of crimes against humanity to justice. Most of the top-ranking officers and officials named by Indonesia's own human rights commission in January 2000 were never seriously investigated, much less indicted. The prosecution failed to make use of vast amounts of UN documentation. For the few convictions, nearly all sentences have been below the legal minimum.
The High Commissioner for Human Rights report to the 59th session of the
Human Rights Commission (E/CN.4/2003/37) criticized "the limited
geographical and temporal jurisdiction of the Court; the lack of experienced
prosecutors and judges; the intimidating and, at times, hostile, courtroom
treatment of Timorese witnesses by some judges, prosecutors and defense counsel;
the causes and consequences of non-attendance of Timorese witnesses at the
proceedings; and the lightness of the sentences imposed, which bear no
reasonable relationship to the gravity of the offences committed."
He added "the failure to put before the court evidence that portrays the killings and other human rights violations as part of a widespread or systematic pattern of violence seriously undermines the strength of the prosecution's case and jeopardizes the integrity and credibility of the trial process."
The UN Special Rapporteur on the Independence of Judges and Lawyers recently reported (E/CN.4/2003/65/Add.2) that the prosecutions violate "the principle that prosecutions are to be undertaken in good faith." He wrote, "None of the defendants is accused of personally committing or commanding in the commission of crimes against humanity." He called the investigations "insufficient" and criticized witness protection procedures. He estimated 100 East Timorese witnesses refused to come to Jakarta to give evidence.
Despite these limitations and the strength of the cases filed by the SCU, Indonesia has explicitly refused to extradite any of those who have been indicted or wanted for questioning in East Timor, despite the Memorandum of Understanding: Cooperation in Legal Judicial and Human Rights between Indonesia and the UN, signed April 2000. On November 2001, Indonesia's attorney general told East Timor's new Prosecutor-General that Indonesia considered the MOU "invalid."
The SCU has issued 60 separate indictments charging a total of 247 persons, most of whom, including all Indonesian military officers, remain out of reach, likely living in Indonesia.
Timor-Leste's top prosecutor Longuinhos Monteiro has complained about
improper attempts by the UN to limit the work of the SCU. Prime Minister
Alkatiri has said that the UN "should assume responsibility" for a
process it set up. He also said that prosecutions were "in [Indonesia's]
As of now, the ability of the SCU to complete its work remains up in the air. The office is set to expire with UNMISET next year. Unless the Security Council acts to extend its mandate and funding is found, even ongoing trials might have to end. We urge the Security Council to fully support the work of the SCU the special courts.
The work of the SCU would serve as a solid basis for an ad hoc international tribunal.
After visiting Timor-Leste last summer, UN High Commissioner for Human Rights Mary Robinson observed, "Everybody I met said they want justice and they feel it can only come from an international tribunal." Her visit had coincided with the first verdicts in Jakarta. Criticizing that outcome and recalling the recommendation of the UN's commission of inquiry, she personally urged the creation of an international tribunal.
East Timorese officials, victims' organizations and NGOs have noted that for reconciliation to be meaningful, those most responsible must face justice. Reconciliation with Indonesia is similarly hampered by the failure to bring to justice the Indonesian military, political, and police leaders who planned, organized and commanded the terror campaign in 1999 and who ordered the invasion, occupation and destruction in East Timor.
Many of those accused of abuses continue to occupy positions of responsibility in Indonesia. For example, Major General Adam Damiri has missed two recent sessions of his trial before the ad hoc court. According to the Jakarta Post, he skipped the May 6 session because he was involved in "military preparations prior to the military operation in Aceh." Such preparations have undermined internationally-supported efforts at peace in Aceh and, if the past is any guide, renewed fighting is likely to be accompanied by systematic violations against the civilian population.
Given the blatant failures of Indonesia's ad hoc court and the refusal to cooperate with the serious crimes process in East Timor, we strongly urge you to implement the recommendations of the UN Commission of Inquiry by setting up an ad hoc international tribunal for East Timor. This is the best and only credible way to ensure that international standards of human rights are upheld in the pursuit of justice for the people of East Timor. We further urge that the tribunal cover the period from 1975 onward, since the Indonesian military was responsible for the deaths of at least one-third of East Timor's pre-invasion population within the first several years of the occupation.
An international tribunal is not only a matter of justice for the people of East Timor. Many of the serious crimes in 1999 were also committed against a UN mission created by the Security Council and involved assaults on both East Timorese and UN personnel. Nine East Timorese staff were murdered in the aftermath of the ballot. Failure to deliver effective justice in the case of East Timor, sends the worst possible message to those who would violently undermine UN operations elsewhere.
Timor-Leste's leadership has given priority to its relationship with Indonesia, promoting reconciliation and good relations with its large neighbor. They additionally recognize that their new country's resources are limited and their fledgling justice system overwhelmed. For these and other reasons, they have shown reluctance to press for an international tribunal. However, as recently as February 28, 2003, President Xanana Gusmao stated, "the international community must hold the responsibility for administering that justice and organising the structures and mechanisms to that effect."
A tribunal will also provide an authoritative account of what actually happened in Timor-Leste. Many Indonesians still regard the loss of their "27th province" as a UN conspiracy, aided and abetted by Australia. While such views prevail (and they were reinforced in the presentation of cases before Indonesia's ad hoc court), the UN's actions in 1999 will continue to be resented, and any agreement on reconciliation will be fragile and unenduring with negative implications for Timor-Leste's long-term security especially along its border.
On February 17, 2000, Secretary-General Kofi Annan, while standing in a churchyard in Liquica, the site of one of 1999s most notorious massacres, called for "justice to prevail over impunity."
On February 21, 2000, the President of the Security Council wrote the Secretary General that "the United Nations has its role to play... in order to help safeguard the rights of the people of East Timor, promote reconciliation and ensure future social and political stability." The UN's obligation to the people of East Timor remains and the pledge to safeguard their rights must not go unfulfilled.
We thank you for your serious consideration of these urgent matters and look forward to your response.
John M. Miller
International Federation for East Timor (IFET)
International Federation for East Timor (IFET)
Secretariat: Charles Scheiner
P.O. Box 1182, White Plains, New York 10602 USA
U.N. Representative: John M. Miller
48 Duffield St., Brooklyn, NY 11201 USA
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