SUMMARY...................................................................................................................................... 3 I.INTRODUCTION......................................................................................................................... 4 II.TIMOR LESTE: A NATION’S QUIET UNRELENTING STRUGGLE FOR INDEPENDENCE ......................................................................................................................................... 8 A.PRE-COLONIZATION AND THE ARRIVAL OF THE PORTUGUESE ..................................................................9 B.THE UNFULFILLED PROMISE OF INDEPENDENCE: INDONESIA’S INVASION OF EAST TIMOR.......................... 10 C.TEARS AND TRIUMPH: TIMOR’S JOURNEY TOWARDS INDEPENDENCE..................................................... 13 D.THE UN’S ADMINISTRATION OF EAST TIMOR................................................................................... 15 III.MODELS OF POST-CONFLICT JUSTICE.........................................................................16 A.CRIMINAL JUSTICE........................................................................................................................20 1.The retributive purposes of criminal justice....................................................................... 21 2.The utilitarian purposes of criminal justice........................................................................ 22 3.International criminal justice and its objectives................................................................. 24 B.RECONCILIATORY JUSTICE..............................................................................................................25 1.Reconciliation: an unsettled notion.................................................................................... 25 2.Reconciliation: aiming to heal all those directly affected.................................................. 27 3.Reconciliatory justice as applied and defined in State practice......................................... 28 C.COMPARING CRIMINAL AND RECONCILIATORY JUSTICE.........................................................................30 1.Never shall the twain meet ................................................................................................. 30 2.As trade offs: Reconciliatory and criminal justice as mutually exclusive...........................34 3.As supporting and separate: reconciliatory and criminal justice working hand-in-hand..37 IV.WHAT DOES INTERNATIONAL LAW SAY? SEARCHING FOR AN INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONLA CRIMINALS................39 A.DISTILLING POSITIVE STATEMENTS OF AN INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES. 40 1.Clarifying the debate: Primary and secondary Norms at international law...................... 40 2.Considering the hierarchy of international legal obligations in searching for a mandatory obligation..............................................................................................................................................41 3.Drawing the link between Jus Cogens norms and Erga Omnes obligations...................... 44 B.THE SEARCH FOR AN ERGA OMNES OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES ......................... 45 1.Examining Treaty law ....................................................................................................... 45 2.Examining State Practice.................................................................................................... 46 3.Examining soft law sources.................................................................................................49 C.CONSIDERING THE EMERGING TREND IN RECONCILIATORY JUSTICE....................................................... 51 1.The rise of the truth and reconciliation commission...........................................................51 2.Trends of reconciliatory justice in times of peace ..............................................................54 V.TIMOR LESTE’S POST CONFLICT JUSTICE SYSTEM.................................................. 60 A.THE SERIOUS CRIMES PANELS....................................................................................................... 60 B.THE COMMISSION FOR RECEPTION TRUTH AND RECONCILIATION ........................................................64 C.EXAMINING THE INTERACTION BETWEEN THE SERIOUS CRIMES PANELS AND THE RECONCILIATION COMMISSION..................................................................................................................................................71 VI.ASSESSING POST-CONFLICT JUSTICE OBJECTIVES.................................................74 A.ASSESSING THE GOALS OF CRIMINAL JUSTICE AS PERCEIVED THROUGH TIMORESE EYES........................... 74 1.Timor’s post-conflict justice: Addressing high-level responsibility....................................76 2.The Serious Crimes Panels attempts at addressing the militia phenomenon..................... 88 1 B.TIMOR LESTE’S RECONCILIATION COMMISSION: ACHIEVING THE GOALS OF RECONCILIATORY JUSTICE....... 94 1.The Reconciliation Commission’s reconciliation of wrongdoers and victims....................95 2.The Reconciliation Commission’s reintegration of wrongdoers into communities.......... 100 VII.THE TIMORESE RESPONSE TO A DUAL-TRACK POST-CONFLICT JUSTICE SYSTEM......................................................................................................................................................105 A.UNDERSTANDING THE TIMORESE PERCEPTION OF JUSTICE ................................................................ 105 1.Timor’s historical and political legacy............................................................................. 106 2.Examining the dual-track culture of justice in Timorese society...................................... 108 3.Lessons from Timor: rethinking the boundaries of criminal punishment......................... 110 VIII.OWNERSHIP OF POST-CONFLICT JUSTICE: WHO DECIDES?........................... 113 A.ADDRESSING POPULAR MISCONCEPTIONS OF NON-WESTERN DISPUTE RESOLUTION MECHANISMS...............114 1.Perceived informality in non-Western dispute resolution systems: the imposition of Western notions of formality...............................................................................................................115 2.Non-Western dispute resolution mechanisms’ inadequate protections: Do international human rights standards provide the only effective framework of protection?................................... 117 B.ANSWERING THE QUESTION OF POST-CONFLICT JUSTICE OWNERSHIP ....................................................122 1.Balancing international and domestic needs : the UN as mediator................................. 124 2.Post-conflict justice in Timor: examining the decision-making process.......................... 131 IX.CONCLUSION....................................................................................................................... 137 X.BIBLIOGRAPHY.................................................................................................................... 140 APPENDIX I.................................................................................................................................148 APPENDIX 2................................................................................................................................ 153 APPENDIX 3................................................................................................................................ 158 APPENDIX 4................................................................................................................................ 165 APPENDIX 5................................................................................................................................ 177 APPENDIX 6................................................................................................................................ 182 APPENDIX 7................................................................................................................................ 189 APPENDIX 8................................................................................................................................ 195 APPENDIX 9................................................................................................................................ 198 APPENDIX 10.............................................................................................................................. 201 2 FORGIVENESS AND PUNISHMENT IN POST-CONFLICT TIMOR SUMMARY This thesis explores the post-conflict justice system of Timor Leste, formerly known as East Timor. In 1999, after 25 years of Indonesian occupation, Timorese finally exercised their right to self-determination in an UN-administered referendum. Upon announcement of the referendum’s results, the tiny island erupted in orchestrated massacres, forced deportations and “scorched earth operations” aimed at punishing the Timorese for their vote. Today, Timor Leste’s post-conflict institutions, consisting of the Serious Crimes Panel and the Commission for Reception, Truth and Reconciliation, set up a unique two-track justice system that simultaneously delivers both criminal justice and reconciliatory justice for crimes committed during Indonesia’s occupation. Informed by the author’s experiences as a legal intern with the Serious Crimes Panel and interviews conducted by the author with personnel at the Serious Crimes Panel, the Commission and ordinary Timorese, this thesis examines the rationale underlying Timor Leste’s unique two-track justice system, in particular its “serious” and “non-serious” subject matter division. It examines why criminal justice for “serious” international crimes was insisted upon by the UN despite the preference of local Timorese politicians for all crimes to be dealt with by the Commission, a decision which in effect resulted in Timor Leste’s twotrack system. In doing so, this thesis examines how this two-track justice system has functioned and whether it has achieved goals envisioned by the UN or Timorese. It addresses the larger question underlying all these issues, of whether decisions on postconflict justice should lie with the post-conflict society itself or the international community. 3 I.INTRODUCTION The year 1999 will forever be indelibly seared in Timorese history. It was the year in which, after centuries of colonization by the Portuguese and another 25 years of occupation by Indonesia, that each and every Timorese were to vote if they wished, for their nation’s independence. It was the year in which all Timorese lived in constant fear as Indonesian forces mounted campaigns of intimidation against pro-independence supporters. It was the year that saw East Timor voting for its independence, a vote which led to the small territory being engulfed by a violence unparalleled in the nation’s already sad history as pro-Indonesian militia groups swept through Timorese towns and villages exacting revenge for the Timorese population’s “betrayal” of Indonesia. 1999 witnessed indiscriminate massacres and “scorched earth” operations that resulted in the death of hundreds of Timorese and the destruction of 75% of Timor’s infrastructure. Today, East Timor has a new constitution, a newly elected government and parliament. But, memories of 1999 and Timor’s violent past still remain-as can be seen in the occasional charred building, newly erected memorials and ongoing post-conflict justice processes set up to address crimes committed in 1999. Unlike other countries emerging from civil conflict, Timor Leste, as East Timor came to be called, made post-conflict justice one of its priorities. The United Nations, which had organized the 1999 referendum in Timor, set up the United Nations Transitional Administration in East Timor (UNTAET) which was charged to exercise executive and legislative powers over Timor Leste while preparing the territory towards full independence.1 On 6 June, 2000, UNTAET established the Serious Crimes Panels (hereinafter known as the Serious Crimes Panels) and the Department of Prosecution of Serious Crimes, (hereinafter known as the Serious Crimes Unit criminally prosecute “serious crimes” particularly those committed in 1999.2 Not long after, UNTAET responded to Timorese leaders’ calls for reconciliatory justice by designing in collaboration with wide segments of Timorese community the Commission for Reception, Truth and Reconciliation (hereinafter known as the Reconciliation Commission).3 The Commission was set up on 13 July 2001 with jurisdiction over cases not falling within the exclusive jurisdiction of the Serious Crimes Panels. 4 This thesis outlines the historical events and circumstances that led to the establishment of Timor Leste’s Serious Crimes Panels and Her Reconciliation Commission. It analyzes how these two institutions have de facto established a two-track post-conflict justice system in which international crimes are subject to a formal criminal justice system heard before the Serious Crimes Panels while non-international crimes undergo reconciliation before the Reconciliation Commission. In particular this thesis 1 S.C. Res. 1272, U.N.SCOR, 4057th meeting, U.N. Doc. S/RES/1272 (1999) UNTAET Regulation 2000-11 (On the Organization of Courts in East Timor) set up the Timorese judicial system and states the Dili District Court’s exclusive jurisdiction over “serious crimes”, Reg. No. 2000-11, UNTAET, 6 March 2000, UNTAET/REG/2000/11, s10; UNTAET Regulation 2000-15 (On the Establishment of Panels with Exclusive Jurisdiction over Serious Crimes) focuses on detailing the subject matter jurisdiction of the Dili District Court, Reg. No. 2000-15, UNTAET, 6 June 2000, UNTAET/REG/2000/15; UNTAET Regulation 2000-16 (On the Organization of the Public Prosecutor Service in East Timor) establishes the Public Prosecutor’s Office within which the Deputy General Prosecutor for Serious Crimes is charged with setting up a Prosecution Unit responsible for the prosecution of Serious Crimes as defined in Reg. No. 2000-11 and Reg. No. 2000-15, Reg. No. 2000-16, UNTAET, 6 June 2000, UNTAET/REG/2000/16, s.14 3 Reg. No. 2001-10, UNTAET, 13 July 2001, UNTAET/REG/2001/10, more popularly known as by its Portuguese acronym the CAVR which stands for “Comissao de Acolhimento, Verdade e Reconciliaocao de Timor-Leste 4 Note that Reg. No. 2001-10 states that “In no circumstances shall a serious criminal offence” be dealt with by the CAVR, Reg. No. 2001-15 supra. n2 at s. This was amended by Reg. No. 2002-9 to state that “in principle, serious criminal offences” shall not be addressed by the CAVR , Reg. No. 2002-9, UNTAET, 18 May 2002, UNTAET/DIR/2002/09 2 examines why the UN insisted that international crimes be criminally prosecuted despite Timorese indigenous traditions of reconciliatory justice and the expressed preference of Her local politicians for reconciliation rather than criminal prosecution. In doing so, this thesis will first and foremost consider if Timor Leste is obligated under international law to criminally prosecute crimes committed during conflict, including those categorized as international crimes. Based on current State and international practice, this thesis concludes that such an international obligation has yet to clearly crystallize. After concluding such, that Timor Leste’s post-conflict justice is rooted not in the observance of international obligations, this thesis goes on to examine the rationale behind Timor Leste’s preference for criminal justice over reconciliatory justice when dealing with “serious” international crimes. It examines the objectives of criminal and reconciliatory justice from Timorese society’s perspective and assesses if the Serious Crimes Panels and the Reconciliation Commission have fulfilled these said objectives. It also attempts to debunk preconceived notions on non-Western alternative dispute resolution methods which have arguably contributed to the preference of Western forms of criminal justice over indigenous forms of dispute resolution. Lastly it addresses the larger underlying question of post-conflict justice ownership and suggests how a possible balance between international and national interests can be achieved by the UN. The writer of this thesis was in Timor Leste from December 2003 to January 2004, attached to the Serious Crimes Unit and had the opportunity of speaking to various UN prosecutors, Commissioners from the Reconciliation Commission, grass-root community leaders and local non-governmental organization workers on the operation and practice of the two-track justice model. This thesis will attempt to reflect views and concerns of the Timorese people relating to the impact of the two-track justice model on their lives. II.TIMOR LESTE: A NATION’S QUIET UNRELENTING STRUGGLE FOR INDEPENDENCE The island of Timor lies at the very tip of the Indonesian archipelago, about 600 km from Darwin, Australia. Timor Leste or East Timor as it was called when under Indonesian occupation, is made up of the eastern half of Timor island, the Oecussi enclave within West Timor and the two islands of Atauro and Jaco.5 Despite Timor’s geographical proximity with Indonesia, the Timorese differ from Malay Indonesians in terms of their ethnic origins, and social and cultural background.6 Timorese society remained relatively isolated from Javanese culture, the dominant Indonesian culture, up till Indonesia’s 1975 invasion. Unlike the rest of present-day Indonesia which was brought under the unifying and dominating influence of Java and Sumatra’s ancient kingdoms such as the Majapahit empire, Timor’s scattered kingdoms flourished and developed independent from external influences aside from occasional trading agreements by individual Timorese kings with non-Timorese traders. This chapter briefly describes Timor Leste’s political history prior to its independence. 5 For general overviews on Timor’s history, see JOHN G.TAYLOR, EAST TIMOR: THE PRICE OF FREEDOM (Zed Books: London, 1999); East Timor : Historical Background, Focus International, published by UK Foreign and Commonwealth Office, London, October, 1999; OUT OF THE ASHES: DESTRUCTION AND RECONSTRUCTION OF EAST TIMOR (James J.Fox & Dionisio Babo Soares eds., Crawford House Publishing: Adelaide, 2000) 6 When around 2500 BC the Proto-Malays, descendents of todays Indonesians pushed into western Indonesia settling down in Java, coastal Sumatra and Borneo. They did not reach Timor. A. Pre-colonization and the arrival of the Portuguese In 1515, Portuguese traders arrived on the island of Timor with Dutch trading ships in hot pursuit. Both were attracted by Timor’s reserves of sandalwood and spices. 7 Over the next 300 years, the Dutch and Portuguese squabbled over ownership of Timor island. The respective claims were finally settled in 1913 before the Permanent Court of Arbitration which divided Timor between the two colonial powers. Portugal was awarded the eastern part of Timor island or East Timor. What is of interest is that despite Portugal and Holland’s claims of ownership over Timor, neither of these colonial powers asserted effective control over Timor island. Indigenous structures proved extraordinarily resistant to both colonial powers, due to tightly-knit kinship ties between Timorese families and clans. At the end of the 19th century the Portuguese finally took concrete steps to establish effective control over East Timor. So as to specifically undermine indigenous power structures, Portugal put in place administrative units which conflicted with indigenous lines of influence. This strategy failed as formal administrators installed by the Portuguese found that they needed the support of local political leaders in order to be effective and therefore sought approval from local political leaders.8 Formal colonial structures thus co-existed with indigenous political structures. Aside from other attempts to establish effective control over the local population politically or culturally, East 7 James J. Fox, Tracing the Path, Reconstructing the Past, in , OUT OF THE ASHES supra note 5 at 16. Fox records that both the Dutch and Portuguese had to hold regular armed expeditions into Timor to subdue the Timorese. Between 1847 and 1913 the Portuguese mounted no less than 60 armed expeditions into East Timor. 8 TAYLOR, supra note 5 at 12, Taylor points out that while colonial authority was sanctioned through coercion and the use of force, traditional authority continued due to the power of cultural tradition. Timor, as Portugal’s most far-flung colony was largely neglected by her colonial master. In 1973 about 93% of East Timor’s population remained illiterate.9 B. The unfulfilled promise of independence: Indonesia’s invasion of East Timor In 1974 Portugal’s colonization of East Timor came to an end when regime change in Portugal resulted in changes in Portugal’s colonization policy. Tired of administering far-flung colonies such as East Timor, Portugal’s new government committed itself to Timor’s decolonization. In October 1976, Portugal set up a transitional government in East Timor to organize local elections in East Timor. Before these elections could be carried out, suspicion and disagreement over Timor’s future political status caused frictions between two of East Timor’s most prominent local political parties, the Front for the Liberation of Timor (Fretilin) and the United Democratic Timor (UDT). Both factions resorted to arms and civil conflict broke out in East Timor. On 4 December 1974 Indonesia invaded East Timor with the ostensible reason of preventing the escalation of East Timor’s civil conflict and any possible spill over effects on Indonesian territory. 10 Following this invasion, on 31 May 1975, Indonesia organized the signing of an Act of Integration which called for East Timor’s integration with Indonesia. This Act was signed by 28 supposedly elected Timorese representatives. In reality only 5 of these 28 members were elected.11 9 For an overview of Portuguese rule see TAYLOR, id at 16-19 TAYLOR, id at 20 11 Lord Averbury, A Positive Legal Duty: The Liberation of the People of East Timor, in SELFDETERMINATION: INTERNATIONAL PERSPECTIVES, (eds. Donald Clark & Roger Williams, 1996), p 217 10 0 Overpowered by Indonesia’s superior military strength, East Timorese actively resisting and opposing Indonesia’s invasion were forced underground. Most were from the local political party Fretilin who organized themselves into Falintil, an armed resistance wing of Fretilin. Over the following years, the Indonesian army sought to root out and suppress local East Timorese dissent. From time to time, the Indonesian military would conduct campaigns of “encirclement and annihilation”, aimed at the “surrounding of the population in an area, followed by their transportation to newly-created strategic camps and the killing of Fretilin members and sympathizers”.12 During armed expeditions into Timor’s forested interior, the Indonesian army would forcibly recruit ordinary villagers for what came to be known as “fence of legs” operations in which hundreds of local villagers would be lined up as “fence of legs” or human targets in front of the Indonesian military during their incursions into Fretilin territory. The largest recorded number of civilians involved in a single such “fence of legs” operation was about 80 000 male villagers.13 The Indonesian military also uprooted and resettled the local population in “resettlement villages” which were put under armed guard so as to prevent the villagers from aiding rebel fighters.14 All in all, a comparison of Portuguese census figures and Indonesian census figures demonstrate that Indonesian occupation of East Timor resulted in 100 000 deaths, the deaths of one third of Timor’s local population.15 Apart from actively suppressing local resistance, the Indonesian authorities also attempted to replace Timorese culture with dominant Indonesian Javanese culture which 12 TAYLOR, supra note 5 at p 85 Id at 117 14 Id at 123 15 East Timor : Historical Background, Focus International, published by UK Foreign and Commonwealth Office, London, October, 1999, supra note 5 at p4 13 1 sought to erase the Timorese population’s self-consciousness as a nation. The authorities implemented socialization programs in Timorese schools and set in place transmigration programs involving the migration of Indonesians from other parts of Indonesia into Timor.16 All throughout Indonesia’s colonization, the Indonesian authorities faced continued resistance from Fretilin and its armed wing Falintil. Much of Fretilin’s efforts were aimed at mobilizing the masses and cultivating the continued support of local traditional leaders.17 Campaigns were also launched abroad in an attempt to alert the international community to East Timor’s plight. The international community however remained largely paralyzed by inaction. Apart from various UN Security Council Resolutions 18 and UN General Assembly Resolutions19 calling for Indonesia’s withdrawal from East Timor, most influential States were reluctant to offend Indonesia which was perceived by these States as an important strategic partner in the South-east Asian region.20 Political records which have surfaced in recent years reveal the complicity or at least acquiescence of States such as America and Australia in Indonesia’s plan of annexing East Timor. 21 16 TAYLOR, supra note 5 at 124-128 Fernando de Araujo, The CNRT Campaign for Independence in OUT OF THE ASHES supra note 5 at 108-110 this same approach was adopted by CNRT during the campaign for independence post-referendum announcement. The youth were tasked to go from door-to-door explaining independence to the villagers. 18 S.C. Res. 384, 30 U.N. SCOR, U.N. Doc S/Res/384 (1975) 19 G.A. Res. 3485, 30 U.N. GAOR, U.N. Doc. A/Res/3485 (1975) (72 in favour, 10 against, 43 abstentions); G.A. Res. 31/53, 31 U.N. GAOR, U.N. Doc. A/31/362 (1976) (68 in favour, 20 against, with 49 abstentions); G.A. Res. 32/24. 32 U.N. GAOR, U.N. Doc. A/32/357 (1977)(67 in favour to 26 against, with 47 abstentions); G.A. Res. 37/30, 37 U.N. GAOR, U.N. Doc A/37/51 (1982) (50 in favour of, 46 against, with 50 abstentions); see also G.A. Res. 33/39; 33 U.N. GAOR, U.N. Doc. A/33/455 (1978); G.A. Res 34/40, 34 U.N. GAOR, U.N. Doc. A/34/46 (1979); G.A. Res. 35/27, 35 U.N. GAOR, U.N. Doc. A/35/48 (1980); G.A. Res. 36/50, 36 U.N GAOR, U.N. Doc. A/36/51 (1981) 20 Jani Purnawanty, Various Perspectives in Understanding the East Timor Crisis, 14 Temp. Int'l & Comp. L.J. 61, 63 (2000) at 65 21 Jessica Howard, Invoking State Responsibility for Aiding the Commission of International CrimesAustralia, the United States and the Question of East Timor, Melbourne Journal of International Law (Vol 17 2 C. Tears and Triumph: Timor’s journey towards independence In 1998, the East Timorese cause was once again taken up by the international community as popular revolution led to change in political leadership in Indonesia.22 On 27 January 1999 Indonesian President Habibie responded to international pressure and announced that Indonesia would hold a referendum in East Timor giving every Timorese the opportunity to vote for autonomy or outright independence.23 Habibie’s decision went against the interest of many Indonesian military leaders who had important economic and political stakes in East Timor. These military leaders reacted to Habibie’s announcement by organizing Operasi Sapu Jagad. The aim of this operation was to portray East Timor as racked by civil conflict and unprepared for any form of self-government.24 Paramilitary groups which were supported, trained and financed by the Indonesian army were charged with intimidating and terrorizing the local Timorese population. 25 While such orchestrated campaigns of intimidation being were carried out, Indonesia’s political leaders were engaged in negotiations with the UN and Portugal. Portugal, the former colonizing power of Timor, represented Timorese interests at these 2) at 2 22 Fernando de Araujo, The CNRT Campaign for Independence in OUT OF THE ASHES supra note 5 at 106 23 Id , Araojo notes that Habibie was in part willing to hold the referendum as he had “received false reports from the military claiming that they were in complete control and that they had already done everything they could to convince the people that the best choice for the future of East Timor was the autonomy option”. 24 Countering the argument that East Timor has had an endemic culture of violence, in his statement to the observes “it is a classic example of how low intensity warfare and counter-insurgency techniques the Kopassus…had been trained to operate in communities to create a climate of terror, hysteria and violence… The violence is meant to create a situation ultimately where it is necessary then to step in to restore order… So I would argue as to whether in fact you are talking about culture and human behaviour, that we are talking about a culture where there was, prior to the presence of these militias, a culture of violence. I do not thinkt hat necessarily has been the case-I thinkit has been fostered. I think it has been nurtured” 25 TAYLOR supra note 5 at xix-xii 3 negotiations due to Indonesia’s reluctance to officially recognize and negotiate with Timorese resistance leaders. On May 5, 1999 Indonesia and Portugal, the latter representing Timorese interests, finally agreed on the modalities of the referendum to be held in East Timor. According to the security agreements, which came to be known as the May 5 Agreements, the United Nations Assistance Mission in East Timor (UNAMET) would be responsible for the organization and administration of the referendum while Indonesian police forces would be charged with maintaining security during the referendum.26 On 4 June 1999 UNAMET commenced operations in East Timor. However, due to paramilitary activities and violence UNAMET was forced to twice postpone the referendum. On 30 August 1999, the referendum was eventually conducted. Despite paramilitary activity and intimidation, more than 90% of Timorese turned up to cast their votes. 78% chose independence. Upon UNAMET’s announcement of the referendum’s results, East Timor erupted into violence as the Indonesian military, police and army-backed militia carried out massacres of civilians and “scorched earth operations”. Within two weeks, the violence had caused some 330 000 Timorese to seek refuge in the jungles of Timor’s mountains while another 150 000 were forcibly deported by the Indonesian military into concentration camps set up in West Timor.27 On 10 September 1999 UNAMET itself was forced to leave as its staff and compounds came under attack by paramilitary groups.28 26 Question of East Timor: Report of the Secretary General, U.N. GAOR, 53rd Sess., U.N. Doc. A/53/591 (1999), Annex I, 1 [hereinafter known as the May 5 Agreements] 27 TAYLOR, supra note 5 at xii; In August 1999 a document was found in the Dili police department regarding “Operasi Remember Lorosae II” a plan for mass evacuation of Timorese to West Timor in the event independence was voted for, also found was an order dated 5 May 1999 cabled from General Subagyo Hadi Siswoyo, TNI Chief of Staff to Colonel Tono Suratman, commanding officer in Dili ordering him to “prepare a security plan to prevent civil war that includes preventative action policing measures, repressive/ coercive measures and a plan to move to the rear/ evacuate if the second option (of independence) is chosen”, both of which are referred to in Australian Parliamentary Report, Chapter 4. 5.50 28 Id at xxvi-xxvii 4 D. The UN’s administration of East Timor As the violence in East Timor escalated, the UN Security Council sent a delegation to Jakarta on 7 September 1999 to meet with the Indonesian government.29 On 12 September 1999, President Habibie was finally persuaded to agree to a UN peacekeeping force in East Timor.30 On 21 September 1999 the International Force for East Timor (INTERFET), an Australian-led peacekeeping force of 8000 landed in Dili.31 On 25 October 1999, the UN Security Council established the United Nations Transitional Administration of East Timor (UNTAET) which would be responsible for the interim governance of East Timor and the territory’s transition to full independence.32 UNTAET was also charged with seeking accountability and justice for the 50006000 deaths which occurred in 1999.33 To do this, UNTAET would have to choose between the various post-conflict justice models already existing in State practice. The next section will analyze the different models of post-conflict justice currently existing in State practice and their underlying jurisprudential principles. 29 Indonesia responded by declaring martial law, transferring control from the police under the May 5 agreement back to the military Id at xxx-xxxi 30 Id at xxx-xxxi 31 S.C. Res. 1264, U.N. SCOR, 54th Sess., 4045th mtg., U.N. Doc. S/RES/1264 (1999) which authorized the creation of a multinational force for East Timor 32 S.C. Res. 1272, supra note 1; following the granting of East Timor’s independence on May 20, 2002, the United Nations Mission of Support in East Timor (UNMISET) assumed UNTAET’s mandate for prosecuting serious crimes and assisting the judicial sector, see S.C. Res. 410, U.N. SCOR,57th Sess.m, 4534th meg., U.N. Doc. S/RES/1410 (2002) 33 TAYLOR, supra note 8 at xxiv 5 III.MODELS OF POST-CONFLICT JUSTICE Throughout East Timor’s 1999 conflict, the UN Security Council and General Assembly had consistently maintained that perpetrators of international crimes would be “brought to justice”. Modern history is replete with instances of political upheaval during which atrocities are committed as opposing groups struggle for political power. The magnitude of such atrocities is exacerbated by the general breakdown in law and order. Successor governments emerging from such civil conflicts more often than not avoid or refuse to address crimes committed during periods of political transition for a myriad of reasons ranging from the new government’s lack of resources, the country’s continuing political instability or the need to focus on the citizenry’s more pressing survival needs. Nevertheless successor States or governments increasingly find themselves facing demands by international actors whether States, organizations or civil society, to address crimes committed during times of transition. These demands are part of a larger phenomenon that is changing the international legal landscape. International law is entering an age of accountability whereby a variety of subjects find themselves being held responsible for their acts.34 The workload of the International Court of Justice (hereinafter known as the ICJ) has more than doubled over recent years as States bring claims against other States for international wrongs.35 Various international and regional 34 James R.Crawford, Responsibility to the International Community as a whole, 8 Ind. J. Global. Leg. Stud. 303 at 309 who argues that international law is experiencing a shift from “sovereignty to obligation” and “impunity to accountability” 35 See generally, PHILLIPE SANDS & PIERRE KLEIN, BOWETT’S LAW OF INTERNATIONAL ORGANIZATIONS (Sweet & Maxwell: London, 2001, 5th Eds.) 351-368 6 institutions hold States accountable to groups and individuals. The ICJ and International Labour Organisation have consistently advocated that international organizations should be considered as duty-bearing responsibility entities.36 International criminal tribunals, “hybrid” tribunals of national and international character and national courts hold individuals accountable for certain acts considered as international crimes. 37 Despite the international community’s condemnation of crimes committed during conflict and threats to hold perpetrators of these crimes accountable, the number of lives claimed by civil conflicts continues to escalate. Post-conflict justice seeks to account for these crimes. Post-conflict justice or transitional justice, as observed by Treital, has undergone three stages of development over the years.38 Although Treital’s analysis includes crimes committed by prior regimes and not only crimes committed during conflict, both crimes share many important characteristics with the former. One is the impossibility of resorting to law during the crimes’ commission thus giving rise to the need to address these crimes only after the regime change. Treital begins her historical survey of post-conflict or transitional justice mechanisms with the Nuremburg and Tokyo trials of Second World War (WWII) (Phase I). These trials established criminal justice as the paradigm model of justice to be adopted when dealing with certain kinds of crimes which are known today as international crimes. This paradigm was reflected in post-war multilateral human rights treaties such as the 36 Id at 512-526 William Burke-White, A community of Courts: Towards a System of International Criminal Law Enforcement, 24 Mich. J. Int’l L. 1 38 Ruti G.Treital, Human Rights in Transition: Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 69 37 7 Genocide Convention and Torture Convention which imposed on State parties the obligation to criminally try perpetrators of acts prohibited by the said Conventions.39 According to Treital, transitional justice entered a second phase of development (Phase II) in the 1980s. During this period, States in Latin America and the Soviet Union marked their transition from non-democratic to democratic political rule by asserting the right to determine the appropriate model of justice to be applied even when addressing crimes that fall into the category of international crimes such as gross violations of human rights. Accountability mechanisms undertaken by these States range from the holding of criminal trials, the granting of amnesty, the enactment of lustration laws and the establishment of truth and reconciliation commissions.40 The truth and reconciliation commission’s popularity during this Phase resulted in it being feted as a legitimate alternative to Phase I’s criminal justice model. Treital argues that we have now entered a third developmental phase (Phase III) of post-conflict or transitional justice. Phase III has seen a reversion back to criminal justice as the paradigmic justice model especially when addressing crimes recognized as international crimes. Treital describes Phase III as differing from Phase I due to its more “universalized” and “normalized” nature. Rather than addressing international crimes by criminal justice on an ad hoc basis, international tribunals such as the permanent 39 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremburg Tribunal, G.A. Res. 95(1), U.N. GAOR, U.N. Doc. A/64/Add.1 (1946); Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 39 U.N. GAOR, Supp. No. 51 at 197, U.N. Doc. A/39/51 40 For an overview of the various kinds of transitional justice mechanisms mentioned, see TREITAL, TRANSITIONAL JUSTICE (2000) 8 International Criminal Court (hereinafter known as the ICC) is argued to have established an expectation that international crimes will and should be criminally prosecuted. 41 While Treital’s Phase III description does accurately describe the international community’s general attitude towards international crimes, it fails to take into account the continuing relevance of reconciliatory justice. Some States continue to argue that truth and reconciliation commissions, especially after the success of the South African Truth and Reconciliation Commission, are real and acceptable alternatives to criminal trials. On the other hand recent UN peace-building operations in Kosovo, Sierra Leone and East Timor draw a distinction between international crimes, which are addressed by criminal justice, and non-international crimes, which are left to the discretion of local accountability exercises. This section will focus on outlining the jurisprudential differences between criminal and reconciliatory justice. Despite their differences, post-conflict criminal and reconciliatory justice processes both ultimately aim at securing lasting peace and individual accountability. The main difference between these two models lies in how they perceive such peace and individual accountability will be best achieved. Proponents of criminal justice use both retributive and utilitarian arguments to explain how criminal justice effectively establishes individual accountability and ensures 41 TREITAL, supra note 40 at 89 9 peace in the aftermath of civil conflict. Retributive justice theorists focus on how criminal justice addresses the wrongdoer’s moral responsibility. Lost-lasting peace, according to retributivists, can only be achieved by treating each wrongdoer as a responsible agent. Utilitarian justice theorists focus also on the wrongdoer, but ultimately do so to achieve social benefits, one of which may be long-lasting peace.42 On the other hand, proponents of reconciliatory justice argue that lasting peace and individual accountability can only be achieved by healing immediate relationships affected by the wrong and not by focusing on the wrongdoer alone. 43 Due to their different underlying premises, different methods and procedures are employed by criminal justice and reconciliatory justice. Criminal justice traditionally employs incarceration or the infliction of physical unpleasantness on the wrongdoer as a means towards securing individual accountability. Reconciliatory justice takes a different approach towards establishing individual accountability. The wrongdoer is made to take responsibility for his actions by undertaking compensation or reparation towards his immediate victim or community directly affected by his wrongdoing. A. Criminal Justice 42 NIGEL WALKER, WHY PUNISH (Oxford University Press: 1991) at 7 Some proponents have argued that in healing such relationships, reconciliatory justice does address retributive and utilitarian ways in a more effective and lasting manner. The author however maintains that the reconciliatory justice movement in reality promotes a different attitude towards crime rather than a different method to achieve similar goals. Its essence lies in its focus those directly injured or affected by the crime and healing those relationships in contract to criminal justice’ conception of crime as a wrong against the State. 43 0 The principles of criminal justice, which remains the paradigm post-conflict justice model for international crimes at least within UN circles, will now be considered more closely. 1. The retributive purposes of criminal justice As mentioned above, proponents of criminal justice largely employ either retributive or utilitarian arguments. Rtributive theorists see criminal justice and punishment as morally obligatory. According to Kant in his classic desert island hypothetical, a community abandoning a desert island would be morally obliged to execute the last murderer in prison before they leave the island. The community is required to do this so as to morally disassociate themselves from the crime that the prisoner has committed. 44 Kant’s theory however fails to explain why the moral response to crime is punishment and not some other process such as reconciliation. Theorists such as Klenig address this by arguing that the notion of criminal punishment as a response to wrongdoings is embedded in our society’s cultural language. In other words there is no “ethical neutrality” to punishment because punishment is understood by society to be a response to certain acts which have been deemed repugnant within society’s moral discourse.45 Instead of focusing on the underlying act’s morality, Mabott argues that the very fact that a law has been broken implies moral culpability and punishment on the 44 IMMANUAL KANT, THE METAPHYSICS OF MORALS (New York: Cambridge University Press, 1996) JOHN KLEINIG, PUNISHMENT AND DESERT (Martinus Nijhoff/The Hague/1973) at 43. Arguably Kelnig goes around the problem of justification by defining punishment as a moral issue and therefore not having to justify it. 45 1 accused.46 Apart from explaining the moral link between crime and criminal justice, Nozick argues that punishment serves to “reconnect” the offender to society’s moral values.47 In all the retributive arguments outlined above, it remains to be discovered what the term “morality” really means. Morality and conscience are non-empirical concepts. Oftentimes jurists, such as Kant in his desert island hypothetical example, seem to have resorted to metaphysical arguments without really explaining the meaning of morality or how to find it. The main thread running through these arguments is that criminal punishment and accountability is not only permissible but morally obligatory due to the wrongdoer’s deviance from society’s prevailing moral norms. 2. The utilitarian purposes of criminal justice Utilitarians do not see criminal justice and criminal punishment as morally obligatory but as necessary means towards achieving certain desirable social goals. In the case of post-conflict societies, while the ultimate goal of any accountability mechanism will be to attain long-lasting peace, more immediate utilitarian goals include deterrence, social denunciation or expression. 46 J.D. Mabbott, Punishment, in PHILOSOPHY OF PUNISHMENT (Robert M.Baird & Stuart E.Rosenbaum eds., Prometheus Books: New York, 1988) at 28, 32 who bases his theory on the prior consent of individuals to a legal system employing punishment “as one of our instruments for the establishment of the conditions of a good life” (p32) 47 It does not aim to correct the offender’s values but “to get someone to understand that they are being punished because others view what they did as wrong”. reproduced in WALKER, supra note 42 at 80 2 Deterrence theorists see criminal justice and criminal punishment of wrongdoers as necessary to deter individuals from erring again and potential wrongdoers from attempting similar acts. In this way, long-lasting peace would be achieved. Another utilitarian aim of criminal justice in post-conflict societies is the re-establishment and reaffirmation of society’s accepted norms. Criminal justice and punishment of wrongs serves not only as “authoritative disavowal” as put forth by Kant but also instrumentally serves as society’s vindication of the criminal law.48 Linked to this expressive function of criminal justice is its ability to communicate certain values to the offender. function Criminal punishment seeks to change the offender’s future action by effectively communicating to the offender the wrong he has done.49 While deterrence seeks to prevent future offences by sheer fear of criminal punishment, communication seeks to make the individual understand why he was punished. Duff brings this communication function a step further, viewing it as necessary in the “reconnecting” of the offender to society’s moral values for his own good.50 Aside from expressing social condemnation and communicating social values to the offender, Hampton also sees criminal punishment as expressing society’s solidarity with victims of crime. 51 It has been argued that criminal justice and criminal punishment are not the exclusive accountability mechanisms capable of achieving these utilitarian aims, especially the expressive and denunciatory aims of criminal punishment. However in societies steeped in the criminal justice tradition, “punishment draws the offender’s 48 JOEL FEINBERG, DOING AND DESERVING (Princeton University Press: Princeton, 1970) See generally ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS (Cambridge, MA: Harvard University Press, 1981) 50 ROBIN ANTONY DUFF, TRIALS AND PUNISHMENT (Cambridge, England: Cambridge University Press, 1986) at 266 51 JEFFRIE MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY (Cambridge, England: Cambridge University Press) at 266 49 3 attention to society’s disapproval of his act in a way that he cannot ignore”.52 On the other hand societies which do not have a tradition of criminal punishment may have to employ other methods of communication which resonate more closely to local cultural norms. 3. International criminal justice and its objectives Advocates of international criminal justice tend to use more utilitarian arguments rather than retributive theories. This is understandable as ideas of “morality” which form the essence of retributive theories, can be argued to differ from society to society. Most justifications for international criminal justice have therefore been framed in universal utilitarian terms. The first international criminal tribunal since Nuremburg, the International Criminal Tribunal for Yugoslavia, was set up specifically to provide “justice for the victims”, “establish accountability for the individual”; “deter continued perpetration of atrocities in the Balkans”, “facilitate restoration of peace in the Balkans”, “develop a historic record for the conflict” and to “serve as a deterrent to perpetration of atrocities elsewhere”.53 Similarly in the wake of the Timor’s 1999 conflict, the UN cited a variety of utilitarian reasons when calling for the criminal prosecution of international criminals such as the need to vindicate victims, to uncover the truth, to deter future civil conflicts and to facilitate nation-building as well as reconciliation. A joint mission report 52 DANIEL SHUMAN, JUSTICE AND THE PROSECUTION OF OLD CRIMES: BALANCING LEGAL, PSYCHOLOGICAL AND MORAL (Washington DC: American Psychological Association, 2000) at 27 53 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993) at 3 CONCERNS, 4 undertaken by three UN Special Rapporteurs to East Timor called upon the Indonesian national authorities “to investigate and prosecute” human rights violations so that “the past (wont) remain shrouded in mystery”, to ensure justice to victims and prevent “renewed cycles of violence”.54 The Security Council’s Mission to East Timor and Indonesia stressed that justice should “to the extent possible, reflect East Timorese expectations” in the interest of “reconciliation” and building a “national political culture based on respect for human rights and accountability”.55 The International Commission of Inquiry on East Timor, established by the Secretary General upon a resolution from the UN Human Rights Committee, recommended the “prosecuting” of perpetrators of human rights violations separate from “issues of truth and reconciliation”.56 B. Reconciliatory Justice The concept of reconciliatory justice as practiced by Timor Leste’s Commission for Reception, Truth and Reconciliation will now be considered. 1. Reconciliation: an unsettled notion Ever since the establishment of the South African Truth and Reconciliation Commission which played a crucial role in South Africa’s transition from apartheid rule to democracy, “reconciliation” has become a popular catchphrase among successor 54 Report on joint mission to East Timor by the Special Rapporteur of the Commission of Human Rights on extrajudicial, summary or arbitrary executions, the Special Rapporteur of the Commission on the question of torture and the Special Rapporteur on violence against women, U.N. GAOR, U.N.Doc. A/54/60 at Para. 65 55 Report of the Security Council Mission to East Timor and Indonesia (9-17 November 2000), U.N. SCOR, U.N. Doc. S/2000/1105 (2000) at Para. 29 56 Report of the International Commission of Inquiry on East Timor to the Secretary General, U.N. GAOR, U.N. Doc. A/54/726, S/2000/59 (2000), Recommendation 6, para. 152 5 governments of post-conflict societies.57 Prior to East Timor’s 1999 referendum, the UN Secretary General in his 1999 Report to the Security Council stated that regardless of the referendum’s outcome “there will be a pressing need for reconciliation between the various competing factions within East Timor”.58 During this same time, UNAMET was also involved in supporting local reconciliation initiatives organized by Timorese church leaders between the Indonesian authorities and the Timorese resistance leaders.59 As noted by Hayner, reconciliation can be carried out at the macro national level and/or at the micro level, which focuses on with individuals or groups directly affected by the wrongdoing.60 Because this thesis focuses on how reconciliatory justice goes towards achieving individual accountability it will focus on reconciliation at the micro level. No State or institution purporting to practice reconciliatory justice has clearly defined what reconciliation means. As observed by Daly, one would have expected to find a comprehensive definition of this term in the South African Truth and Reconciliation Commission’s report. However, instead of attempting a clear comprehensive definition of reconciliation, the report focuses on what Daly described as “a catalogue of heartwarming moments”.61 The flexibility and informality inherent in the concept of reconciliatory justice renders its precise definition impossible. Such flexibility 57 Before that most truth and reconciliation commissions were seen as excuses for impunity. The South African Truth and Reconciliation Commission was the first truth and reconciliation commission which sought to establish individual accountability for crimes committed. Before that, Latin American truth and reconciliation commissions focused on truth-seeking and proposing recommendations to new successor governments. 58 Question of East Timor, Report of the Secretary General, U.N. GAOR, U.N.Doc. S/1999/595, 22 May 1999, para. 33 59 Id, para. 7 60 PRISCILLA HAYNER, UNSPEAKABLE TRUTHS (Taylot & Francis Group: US, 2002) at 155 61 Erin Daly, Transformative Justice: Charting a Path to Reconciliation, 12 Int’l Legal Persp. 73 6 in itself is not undesirable. Oftentimes, our insistence on precise institutional and procedural certainty stems from our familiarity with particular features of Western-style criminal justice. 2. Reconciliation: aiming to heal all those directly affected The difference in the approaches of criminal and reconciliatory justice rests largely on how crime is perceived within the respective frameworks of justice. Criminal justice sees crime as a wrong against the State.62 The State’s involvement is seen as necessary for to two reasons. First the nature of the offender’s acts is so serious that it is deemed to affect not only the victims of the crime but also that of wider society. Furthermore due to the crime’s serious nature, the State is seen as a more neutral arbiter of justice as compared to the directly involved victim. On the other hand, reconciliatory justice sees crime as a conflict between individuals and their immediate communities.63 Such conflicts can only be properly understood and effectively resolved by seeking the input of all parties directly affected. According to reconciliatory justice theorists, longlasting commitment to any conflict resolution is possible only when the parties involved feel true ownership over the conflict resolution process and result. In reconciliatory justice, the perpetrator is required to admit his wrongdoing and work with directly affected parties so as to correct any harm resulting from his 62 The idea that any crime committed against the “king’s peace” (the State) arose after the centralizatrion of governments as a means of usurping the jurisdiction of the courts of local rulers and of the Roman Catholic Church. Prior to that time legal systems recognized that crime harmed the community peace (the State), they primarily viewed and treated crime as an injury to the victim and the victim’s family, and restitution was the principal means of repairing that injury and restoring the state/ community peace, see Daniel W.Van Ness, Restorative Justice and International Human Rights, in RESTORATIVE JUSTICE: INTERNATIONAL PERSPECTIVES (Burt Galaway & Joe Hudson, eds., 1996) at 17 63 Van Ness, supra n62 at 23 7 wrongdoing.64 Such restitution aims to put the victim back in the situation prior to the offender’s wrongdoing and is seen as an act of accountability on the part of the wrongdoer.65Proponents of reconciliatory justice argue that the dialogue process and reparation directly undertaken by the wrongdoer towards the victim achieves individual accountability in a more effective way as compared to criminal justice.66 3. Reconciliatory justice as applied and defined in State practice Generally, reconciliatory justice aims to heal relationships which have been disturbed due to the wrongdoer’s actions. As pointed out by some commentators, reconciliation or the healing of relationships can take place on two levels.67 On one level, such “healing” of relationships can be understood to merely mean the differing parties agreeing to live together in non-lethal co-existence. On another level, however, States implementing and seeking to justify their choice of reconciliatory justice over criminal justice have stressed the richer moral dimensions of reconciliatory justice which requires forgiveness and a “change of heart” by all involved. By emphasizing the moral dimensions of reconciliatory justice, proponents of reconciliatory justice portray it as morally superior to the dominant criminal justice model. The benefits of reconciliatory justice have been couched in both religious and secular terms. Reconciliation hearings of the South African Truth and Reconciliation 64 Peggy Hutchinson & Harmon Wray, What is Restorative Justice?, New World Outlook, July/Aug. 1999 at 5 65 Id. Detlev Frehsee, Restitution and Offender-Victim Arrangement in German Criminal Law: Development and Theoretical Implications, 3 Buff. Crim. L.R. 235 at 248 67 Jeffrie G. Murphy, Keynote Address, Forgiveness, Reconciliation and Responding to Evil: A Philosophical Overview, 27 Fordham Urb. L.J. 1353 (2000) at 1355-1395, 66 8 Commission and Timor Leste’s Reconciliation Commission stress Christian values such as repentance, penitence and forgiveness. Most of Latin America’s truth and reconciliation commissions have been secular in nature and cite a variety of pragmatic reasons for reconciliation and forgiveness.68 Forgiveness and reconciliation is seen as necessary to foster national unity and togetherness, to overcome the challenges facing a new nation and to truly leave the past divides behind. Jurists have also argued that forgiving is necessary to prevent past events from clouding the rationality of our present decisions or future judgments.69 Aside from such pragmatic reasons, jurists have also recognized the non-religious yet moral value of forgiving. According to this view, all individuals owe each other a minimum duty of respect. Victims who insist on not forgiving wrongdoers deny them “the opportunity to reassert their dignity” and result in maintaining “an inherently unequal (moral) relationship” between the victim and wrongdoer.70 Victims should also be encouraged to forgive their wrongdoers for their own good as forgiveness encourages compassion and moral development. 71 The following section analyzies criminal justice and reconciliatory justice in relation to one another. 68 While these moral arguments have been couched in non-religious terms, they are in reality based on a certain conception of the individual’s dignity which can be argued to be inherently religious. 69 SHUMAN, supra note 52 at 41-2 70 Id at 43-5 71 Id 9 C. Comparing criminal and reconciliatory justice 1. Never shall the twain meet Jurists have pointed out that the boundaries between criminal and reconciliatory justice are not as watertight or exclusive as they have once been perceived. Aims once thought as exclusive or capable of being achieved only through criminal justice are argued to be also served by reconciliatory justice, vice versa. Such arguments have been raised particularly by proponents of reconciliatory justice who argue that reconciliatory justice should not be seen as merely being an alternative to criminal justice. Instead it should be recognized that apart from pure reconciliatory aims, reconciliatory justice also fulfills the traditional aims of criminal justice. As a relatively newer theory of justice, it is understandable why advocates of reconciliatory justice seek to portray it not only as an alternative theory of justice but as one which also fulfills the aims of criminal justice. In response to the above-mentioned arguments, this section argues that there are inherent institutional and social limitations that make one model of justice or the other more suited towards performing certain aims. Institutional frameworks which cultivate the development of one model or the other are particularly resistant towards accommodating features of other models. Also each society has particular views of how justice should be meted out, what means should be employed and what aims should be achieved. All these impressions have been reinforced by the historically dominant model of justice and cultural perceptions of justice within a particular society. Society thus 0 inscribes certain value judgments onto specific methods employed by reconciliatory and criminal justice which in turn limits the kinds of objectives these methods can achieve. a) The different institutional backdrops of criminal and reconciliatory justice When assessing models of justice one has to keep in mind that justice systems consist not only of theories and methods but entire institutional and social frameworks within which these models operate. The socio-political landscape that facilitates and shapes particular forms of justice also serves as a limiting factor. The development of the criminal justice system is tied closely to the rise of the State and centralization of political authority in modern Western history. The State’s palpable presence in criminal justice models is demonstrated in Hart’s definition of criminal punishment: 72 “Punishment is something (i) involving the infliction of something which is assumed to be unwelcome to the recipient (ii) for an offense against legal rules (iii) imposed on an actual or supposed offender for his offense (iv) it must be intentionally administered by human beings other than the offender (v) it must be imposed and administered by an authority constituted by a legal system against which the offence is committed” 72 Hart, Prolegomenon to the Principles of Punishment, in PHILOSOPHY OF PUNISHMENT (ed. Robert M.Baird & Stuart E.Rosenbaum, 1988) at 17 1 In the criminal justice model it is the State which has the authority to mete out punishment or pardon. Criminal justice’s institutional framework leaves no room for forgiveness, reparation and reconciliation as understood and perceived in reconciliatory justice. It can be argued that the criminal justice model recognized a form of “forgiveness” as demonstrated in the State’s suspension of criminal punishment through pardons and clemency.73 Reconciliatory justice however sees forgiveness as something only a victim can give and is not a right to be assumed by the executive. The State’s dominant role in criminal justice leaves no room for the kind of personal forgiveness and reconciliation as perceived in reconciliatory justice.74 Conversely, it is particularly hard for loosely organized societies such as indigenous communities and nomadic peoples to adopt certain features of criminal justice. Within such communities, individuals are organized into smaller groups along bloodlines or kinship ties. These smaller groups blend into bigger groups which eventually make up the community itself. Loyalties within the group prove crucial for the group’s survival. The group provides the individual with protection. Within a community consisting of many such groups, it is necessary to prevent inter-group feuds from breaking out in order to preserve the community’s own survival. Unlike the modern State, such communities do not have the centralized police powers necessary to preserve peace by force. In the criminal justice model, the State’s police power imposes criminal power upon the finding of a right and wrong by a neutral authority. The force behind a criminal judgment comes from the certainty of its enforcement. In contrast, dispute resolution in 73 74 David Tait, Pardons in perspective: the role of forgiveness in criminal justice, 13 Fed. Sent. R. 134 J.B Mabbott, supra note 46 at 38 2 non-State communities centre around seeking compromises between disagreeing groups. The direct participation of groups involved in the said conflict is important to ensure true ownership of the agreement. It is such ownership that guarantees the agreement’s performance. Furthermore, non-State societies usually develop in rural areas where limited agricultural outputs retard the growth of large populations. Due to a lack of resources and the constant need for manpower, traditional forms of criminal punishment such as imprisonment, is seen as “free lodging and free food”. Incarceration is also not possible due to the community’s lack of any central enforcement power. b) Social and historical landscapes: limits of cultural perception on criminal and reconciliatory justice Advocates of reconciliatory justice have argued that reparations envisioned by reconciliatory justice processes do fulfil utilitarian and retributive aims of criminal justice.75 For example, by holding reconciliation hearings in public, society and not only those directly involved are able to express their disapproval and denounce the crime committed by the wrongdoer.76 According to this view, reconciliatory justice is capable of and does perform functions traditionally ascribed to the criminal justice, differing only in relation with the means employed in achieving these aims. 75 Dan Markel, The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States, 49 Univ. of Toronto L.J. 389 at 431 76 Thorvaldson, S.A. “Toward the definition of the reparative aim” in J.Hudson and B.Galaway (eds) Victim, Offenders and Alternative Santions (Lexington, Mass: DC Heath, 1980) at 23 cited in MARTIN WRIGHT, JUSTICE FOR VICTIMS AND OFFENDERS (Open University Press: Milton Keyes, Pliladelphia, 1991) at 43 3 It should however be remembered that social and cultural perceptions of justice will often limit what can be achieved by reparations as conceived by reconciliatory justice or criminal punishment. In other words, because of how society perceives criminal and reconciliatory justice, traditional forms of criminal punishment are more suited towards achieving retributive and utilitarian objectives in ways that reparation and restitution are not. Human psychology studies conducted in societies with a tradition of criminal justice demonstrate that the ordinary victim does feel vindicated when the wrongdoer is made to undergo some form of physical suffering or punishment.77 While it can be argued that such “eye for an eye” justice is “primitive” and “crude in the extreme” it cannot be denied that such social perceptions are so deeply rooted that nothing less than actual physical or mental unpleasantness will be perceived as retributive by the large majority of people in modern society.78 2. As trade offs: Reconciliatory and criminal justice as mutually exclusive Most advocates of reconciliatory justice and criminal justice often see their positions as exclusive, in terms of a choice between “truth or justice”. Choosing one would require the abandoning of the other because their ultimate aims are perceived as being at odds with one another. The retributive and utilitarian aims of criminal justice cannot be squared with the aims professed by reconciliatory justice. In response to calls to criminally try South Africa’s apartheid leaders, Bishop Tutu argued that the moral course of action was to forsake vengeance by forgoing criminal trials.79 However Tutu’s 77 SHUMAN, supra note 52 at 21 Id at 22 79 Del Vecchio, a criminologist argues that “The alleged absolute justice of repaying evil for evil…is really an empty sophism. If we go back to the Christian moralists, we find that an evil is to be put right by doing good” quoted in Barnett, R “Restitution: a new paradigm of criminal justice”, Ethics: An International 78 4 statement automatically equates retribution with vengeance, which are in reality two different concepts. For example, retribution is limited by proportionality while there is no such limit on vengeance. 80 Many transitional societies embracing reconciliatory justice see criminal justice as a necessary a trade-off to achieving lasting peace and seek to prevent any possible resort to criminal justice even upon the completion of reconciliatory justice efforts. Among all the truth commissions established so far, only those of El Salvador and Chad have named individual perpetrators in their reports.81 During the negotiation of Guatemala’s Truth Commission, military leaders who feared future criminal prosecution, insisted that names of perpetrators would be excluded from the report.82 Sierra Leone’s recent peace agreement which established the Sierra Leone truth commission also included an unconditional general amnesty.83 There have been some truth and reconciliation commissions which saw their work as laying the foundations for later criminal justice instead of excluding it. 84 Commission reports from the truth commissions of Argentina, Uganda, Chad and Guatemala expressly recommended the criminal prosecution of human rights violators.85 Argentina’s truth Journal of Social, Political and Legal Philosophy 1977, 279 at 283 80 David A. Crocker, Democracy and Punishment: Punishment, Reconciliation and Democratic Deliberation, 5 Buff. Crim. L. R. 509 at 517-523 81 HAYNER, supra note 60 at 107 82 Id at 45 83 Lome Accords, “Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone,” July 7, 1999 available on official website of Sierra Leone government at http://www.sierra-leone.org/lomeaccord.html 84 HAYNER, supra note 60 at 39-40, the naming did lead to the removal of the named individuals by the Ad Hoc Commission, a body established by peace accords tasked with removing human rights violators from the military. 85 Id at 323-324 5 commission’s work and report, Nunca Mas (Never again,) was followed by the repeal of self-granted amnesty laws and the turning over of commissions files to the prosecutor. This resulted in the eventual trial of Argentina’s ex-military leaders and the jailing of 5 generals.86 Nevertheless, despite such recommendations by truth and reconciliation commissions, successor governments may still not see criminal justice as a follow-up option to reconciliatory justice. While El Salvador truth commission’s report named over 40 individuals responsible for the atrocities, the successor government foreclosed any possible criminal prosecution of named individuals by enacting a sweeping amnesty law.87 Uganda’s truth commission also recommended the criminal prosecution of perpetrators and forwarded about 200 files to the prosecutor. However only 50 were eventually prosecuted, resulting in only 12 convictions obtained for minor offences such as attempted kidnapping. 88 Haiti’s truth commission also recommended the criminal prosecution of wrongdoers but few prosecutions have been undertaken so far due to fear of political reprisal.89 Against these examples, Chile’s use of the Chilean truth commission report stands out in contrast. Despite an amnesty passed by its successor government, Chile’s truth commission’s report was eventually used to implement what became known as the Alywin doctrine. This doctrine required all cases to be thoroughly 86 Id at 34, the prosecutor used the Commission’s nearly 9000 case files to choose 800 witnesses for trials which covered some 700 individual cases. 5 out of 9 of the tried individuals were convicted of homicide, torture and other acts violence and sentenced from 4 and one half years to prison. However the public were angry at the light sentences and further trials were cut short when military pressure on the civilian government caused restrictive laws to be passed. The “full-stop” law set a cutoff date for initiating prosecutions for events during the period of military rule. The “due obedience” law then prevented the prosecution of those who claimed to be acting under a superior’s orders. The convicted few were then pardoned by Menem upon his accession to office in 1989. 87 Id at 39, 91; the report while naming individuals did not call for their prosecution, instead arguing that fair trials were impossible until reform of the judiciary was undertaken. In fact during internal discussions the commission members actually considered recommending an amnesty. This approach of the commission was bitterly criticized by the human rights community. 88 Id at 93 89 Id at 97 6 investigated by Chilean courts before application of Chilean amnesty laws.90 Furthermore Chile’s Supreme Court has recently held that the amnesty laws passed do not apply to cases of continued disappearances, opening the way for Pinochet’s criminal prosecution before Chilean courts. 91 3. As supporting and separate: reconciliatory and criminal justice working handin-hand Hayner insists that truth commissions and criminal trials serve different purposes despite their overlap in subject matter and should not be considered as replacements for one another.92 Truth and reconciliation commissions are able to investigate and establish broad historical records which individual criminal trials, with their separate focus on each perpetrator, cannot do. On the other hand, true closure for victims will not be achieved if perpetrators are perceived as evading criminal justice through the reconciliation process. In particular Hayner states that truth commissions should not be seen as “second-best, weaker option(s)” when criminal justice is deemed not possible. 93 Hayner’s position is nevertheless largely based on the fact that most truth commissions do not establish individual accountability.94 Are truth commissions such as the South African Truth and 90 In 2004 the Chilean Supreme Court finally held that the amnesty would not apply to cases of disappearances, opening the way for criminal justice. See “Pinochet and the Prospect of Criminal Justice”, by Joanne Mariner, 15 August 2000, CNN available at http://archives.cnn.com/2000/LAW/08/columns/fl.mariner.pinochet.08.25/ 91 Id 92 HAYNER, supra note 60 at 88; this is similarly echoed by Amnesty International’s report on East Timor in East Timor: Justice past, present and future, ASA 57/001/2001, 27 July 2001 available at http://www.amnesty.org, section 8 whereby it states that “truth commissions should ont be seen as an alternative to justice but should supplement judicial processes and should not in any way interfere with a state’s responsibility under international legal standards to bring perpetrators of human rights violations to justice”. 93 HAYNER, id at 88, 102-106, among the supportive roles cited by Hayner for Truth Commissions is appraising the role of courts in the system of repression, recommending judicial reports, promiting the rule of law and fulfilling international obligations such as victims rights 94 Id at 88 7 Reconciliation and Timor Leste’s Reconciliation Commission which do aim at establishing individual accountability to be considered “weaker” when compared to criminal justice? This issue will be critically examined in the next few sections. First it will be examined if, despite the benefits of reconciliatory justice, a binding legal obligation to criminally prosecute perpetrators of international crimes exists at international law. 8 IV.WHAT DOES INTERNATIONAL LAW SAY? SEARCHING FOR AN INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONLA CRIMINALS Given the structural and philosophical differences between criminal and reconciliatory justice, deciding on a model of justice should not be reduced to a simple choice between “truth or justice”. Deciding on a post-conflict model of justice is rendered even more difficult when the post-conflict society concerned is faced with a myriad of more pressing security, humanitarian and rebuilding concerns. Very often judicial systems in post-conflict societies have to be rebuilt from scratch. Recognizing constraints faced by post-conflict societies, international lawyers have argued that the burden of addressing international crimes should not be the sole responsibility of the post-conflict State but that of the international community as a whole. This role has been assumed in recent years by the UN during peace-building operations in Cambodia, East Timor and Kosovo. The preferred model of justice advocated by the UN in all such peace-building operations has been the criminal justice model whether in the form of an international tribunal, “hybrid”, mixed courts or local courts. The UN has justified its position by 9 arguing that the criminal prosecution of international criminals is an international legal obligation. This section critically examines whether such an obligation to criminally prosecute international crimes exists at international law. It also looks at the rise of reconciliatory justice in State practice. A. Distilling positive statements of an international obligation to prosecute international crimes 1. Clarifying the debate: Primary and secondary Norms at international law International legal rules can be divided into primary and secondary norms. As elaborated by the international law commission, primary norms set out the substance and content of the right and obligation while secondary norms kick in only when primary norms are violated.95 Secondary norms govern the consequences which arise when a primary norm is violated such as the duty to make reparations or compensation. In relation to international crimes, primary norms spell out the content of international crimes. These tell us what acts amount to international crimes. There is a general consensus among jurists and commentators that war crimes, genocide, torture and crimes against humanity are international crimes. Confusion arises when jurists argue that 95 Commentaries to the draft articles on State Responsibility, International Law Commission, 53rd session, extract from the Report of the International Law Commission on the work of its 53rd session, Official Records of the General Assembly, 56th session, Supplement No. 10 (A/56/10), chp.IV.E.2 p. 61 0 States are obligated to prosecute perpetrators of international crimes because these acts are prohibited at international law and considered international crimes. 96This blurs the distinction between primary and secondary norms. It is important to maintain a distinction between primary norms and secondary norms because while the primary norm prohibiting international crimes remains constant in all situations, the exact secondary obligation to be undertaken in response to such crimes may differ depending whether that State is the territorial State, the State in which the perpetrator is found or one that is not directly affected by the conflict. It is reasonable that victims expect certain obligations from the territorial State. For our purposes, while there may be overlaps or coincidences between the extent of secondary obligations of territorial and non-territorial States, the latter will only be considered if pertinent to the understanding of the former. Despite the internationalization of post-conflict justice as manifested in the establishment of international tribunals and the ICC, the high cost and inefficiency of such international measures will require the bulk of post-conflict justice to be undertaken directly by the territorial State with the assistance of the UN as demonstrated by the recent proliferation of hybrid tribunals.97 2. Considering the hierarchy of international legal obligations in searching for a mandatory obligation 96 LYAL SUNGA, INDIVIDUAL RESPONSIBILITY IN INTERNATIONAL LAW FOR SERIOUS HUMAN RIGHTS VIOLATIONS (Martinus Nijhoff Publishers: London, 1992) at see generally 123-137 97 Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, Criminal Law Forum 12 185 1 It is currently accepted that a hierarchy of norms exists within international law.98 Jus cogens or erga omnes obligations supersede all other international legal norms whether established by treaty or custom. These jus cogens norms or erga omnes obligations may be formed either through treaty, custom or general principles.99 What differentiates jus cogens or erga omnes norms from other sources of international law is their mandatory legal nature which cannot be avoided or overturned by norms not of the same character. 100 It is not enough to determine if there exists an international legal obligation on post-conflict societies to prosecute perpetrators of international crimes. In order for such an obligation to be mandatory in nature, superseding other treaty or customary obligations of the State in priority, such an obligation has to be of an erga omnes nature. The ICJ in its 1970 Barcelona Traction case drew a difference between “obligations of a State towards the international community as a whole, and those arising vis-à-vis another State..”. Such erga omnes obligations are norms which “in view of the importance of the rights involved” are owed by individual States “towards the international community as a whole”.101 Also the erga omnes nature of such an obligation endows on third States, not directly affected by the conflict, a right to insist on the observance of such obligations. 102 The ICJ has in the course of various decisions over the 98 Theodor Meron, On A Hierarchy of International Human Rights, 80 A.J.I.L. 1; Dinah Shelton, 2001 Ariel F.Sallows Conference: Human Rights and the Hierarchy of International Law Sources and Norms, Hierarchy of Norms and Human Rights: Of Trumps and Winners, 65 Sask. J. Rev. 299; 99 Prosper Weil, Towards Relative Normativity in International Law?, 77 A.J.I.L. 413, at p425 100 Shelton, supra n.98 at p 332 101 Barcelona Traction, Light and Power Company Limited Case (Belgium v. Spain), 1970, I.C.J. para. 33 102 Commentaries on ILC Draft Articles on State Responsibility, supra n95, Article 48, para.1 2 years further clarified the notion of erga omnes obligations by citing examples of such obligations.103 Sharing the same elevated status on the hierarchy of norms as the erga omnes obligation is the jus cogens norm. A short summary of the nature of this norm is necessary to understand the link between jus cogens norms and erga omnes obligations. Scholars disagree as to the exact nature of a jus cogens norm, some equating it with customary international law104 and others with certain “general principles”.105 The concept of jus cogens was first referred to in Article 19 of the Vienna Convention on the Law of Treaties which states that there are certain norms of international law which States are not allowed to contract out of by treaty. Both erga omnes obligations and jus cogens norms aim to protect values deemed important to the international community. This rationale underlying erga omnes obligations and jus cogens norms have been explained by various international legal jurists and commentators. The International Law Commission’s Special Rapporteur on State Responsibility, explains that erga omnes obligations are founded on the fact that such breaches “shock the conscience of mankind” and that to exclude the moral element involved in identifying erga omnes obligations would be inappropriate.106 Maurizo Ragazzi states that such obligations are “obligations instrumental to the main political objectives of the present time, namely the preservation of peace and the promotion of 103 Barcelona Traction, supra note 101 at para. 34; East Timor Case (Portugal v. Australia), 1995, I.C.J. para.29 104 ANTHONY D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 132 (1977) 105 M.Cherif Bassiouni, A Functional Approach to “General Principles of International Law” 11 Mich. J. Int’l L. 768 106 Crawford, supra note 34 at 314 3 fundamental human rights which in turn reflect basic goods (or moral values), first and foremost life and human dignity”.107 According to Bassiouni crimes achieve jus cogens status when they affect the interests of the world community as a whole by threatening the peace and security of mankind.108 3. Drawing the link between Jus Cogens norms and Erga Omnes obligations It is commonly accepted that primary norms prohibiting international crimes have attained jus cogens status in the sense that any treaty entered into allowing the commission of these norms would be void.109 Each State also has an erga omnes obligation not to commit such international crimes. Some commentators have argued that because certain crimes are jus cogen crimes there automatically exist erga omnes obligations on all States to criminally prosecute international criminals.110 While the two concepts of jus cogens and erga omnes obligations are conceptually distinct, there are necessary overlaps as both are rooted in preserving fundamental interests of the international community.111 Hannikainen suggests that because the purpose of jus cogens norms is to protect fundamental and overriding interests of the international community its purpose can only be fulfilled if these norms are owed “by all States and other subjects 107 MAURIZO RAGAZZI, THE CONCEPT OF INTERNATIONAL OBLIGATIONS ERGA OMNES (New York: Clarendon Press, 1997) at 134 108 Bassiouni, Accountability,supra n at 20 109 SUNGA, supra note 96 at 131 110 “Thus, recognizing certain international crimes as jus cogens carries with it the duty to prosecute or extradite…” however later on Bassioni also recognizes that “it is still uncertain in international criminal law whether the inclusion of a crime in the category of jus cogens creates rights or as stated above nonderogable duties erga omnes” M.CHERIF BASSIOUNI, ACCOUNTABILITY FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW IN POST CONFLICT JUSTICE, (Transnational Publishers, 2001) at 17 & 25 111 For example the International Court of Justice has found the “prohibition of the use of force” which is also known as the “outlawing of acts of aggression” as an erga omnes obligation as well as a jus cogens norm. See Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v USA) (Merits), 1986, I.C.J. para. 190 (date) 4 of international law to the international community of States”, in effect finding that there is an erga omnes obligation to observe jus cogens norms.112 The International Criminal Tribunal of Former Yugoslavia has made a more limited finding on the consequences which flow from the breach of a jus cogens norm. In Furindzija, the court stated that “one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction”.113 The International Criminal Tribunal of Former Yugoslavia therefore phrased the consequences flowing from breaches of jus cogens norms in permissive rather than mandatory terms. In other words, States have a right but not an obligation to prosecute perpetrators. The tribunal’s finding was however directed towards every State in the international community. In relation to the actual territorial State in which the atrocities occurred, different rules can be argued to apply. A closer examination of State practice and treaty law is required to examine if such an erga omnes obligation on post-conflict societies to criminally prosecute international crimes can be argued to exist. B. The search for an Erga Omnes obligation to prosecute international crimes 1. Examining Treaty law 112 LAURI HANNIKAINEN, PEREMPTORY NORMS AT INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS (1988) at 6 113 Prosecutor v Furindzija, Case No. IT-95-17/I-T (10 Dec. 1998), p.60 5 Most commentators who argue that there exists at international law a mandatory obligation to prosecute international criminals cite aut dedere aut judicare provisions of the Genocide Convention, Geneva Conventions and Torture Convention.114 These provisions require member States to criminally prosecute perpetrators of treaty crimes or extradite them to member States which will undertake such prosecution.115 Jurists argue that the widespread ratification of these Conventions show universal condemnation of these treaty crimes and that aut dedere aut judicare provisions contained in these treaties have achieved the status of customary international law. But in determining if the aut dedere aut judicare provisions in these treaties have attained jus cogens or erga omnes status, State practice has to be examined as to see if these provisions are adhered to in reality. 2. Examining State Practice Ever since the Nuremburg and Tokyo trials, there has been an increase in local, regional and international prosecutions of international crimes. In the aftermath of the Yugoslavian and Rwandan conflict the Security Council, acting under its Chapter 7 powers in the UN Charter, set up two international tribunals to try international criminals of Yugoslavia and Rwanda. Aside from establishing international tribunals, the Security 114 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277; 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 49; 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 50; 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Art. 129; 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 146; 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 39 U.N. GAOR, Supp. No. 51 at 197, U.N. Doc. A/39/51Art. 5(2) 115 M.Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 594 Law and Contemporary Problems 1996 6 Council has in several resolutions called for the criminal prosecution of perpetrators of international crimes.116 UN peace-building missions in Kosovo, Sierra Leone and Timor Leste have set up hybrid courts to prosecute international criminals in the aftermath of conflict. However, such instances of criminal prosecution have to be weighed against State practice to the contrary. Blanket amnesties which clearly foreclose criminal prosecution for international crimes are clearest examples of non-observance of the proposed mandatory obligation to prosecute international criminals. O’Shea observes that transition from military or authoritarian rule to civilian democratic government is rarely be achieved without the promise of amnesty. 117 This possibly accounts for amnesty being a frequent feature of the political landscape of various Latin American and African States in the past 25 years. In these cases amnesty is either granted via amnesty laws or ad hoc proclamations of amnesty by the new government.118 States which have passed general amnesty laws extending even to international crimes in the last 25 years include Albania, Algeria, Argentina, Chile, Croatia, El Salvador, Haiti, Peru, Poland, Yugoslavia, Romania, South Africa, Uganda and Uruguay.119 The regular use of amnesties foreclosing criminal prosecution of international criminals has not only been used by States but also by international mediators engaged in 116 For example Resolution 748, requiring Libya to surrender to the United States or the United Kingdom for prosecution the two Libyan officials charged with bombing Pan American Flight 103, S.C. Res. 748, SCOR (1992); A year later, the Council adopted Resolution 837, calling for the arrest of Somali Warlord Mohamed Farrah Aidid, who was responsible for the murder of 24 U.N. peacekeepers, S.C. Res. 837, SCOR (1993)” 117 ANDREAS O’SHEA, AMNESTY FOR CRIMES IN INTERNATIONAL LAW AND PRACTICE, (Kluwer Law International: The Hague, 2002) at 35 118 Id 119 Id 7 conflict resolution. The open use or assent to amnesties by international and regional organizations confer upon these amnesties a certain degree of international legitimacy.120 In 1993 the Haitian military junta agreed to an amnesty agreement mediated by the UN and which was endorsed by the UN Security Council. When the junta subsequently reneged on this agreement, another amnesty agreement was constructed, this time mediated by the US. As this Haitian amnesty covers all “political crimes” it would also exclude international crimes containing political elements. In 1996 the ceasefire agreement containing an amnesty clause was negotiated between the Guatemalan government and rebel forces. This agreement’s negotiation throughout the 1990s was facilitated by the UN and a coalition of States consisting of Mexico, Venezuala, Columbia, Norway, Spain and the US known also as the “group of friends”. This amnesty includes all “political crimes” which like the Haitian amnesty could be broadly interpreted to include international crimes. However in response to pressure by international civil society, the Guatemalan amnesty law was later amended by the Guatemalan government in 1998 to exclude genocide, torture and forced disappearances. Commentators, such as Treital have argued that recently established international tribunals such as the International Criminal Tribunals of Former Yugoslavia, Rwanda and the ICC herald in an era of international criminal justice. The International Criminal Tribunals of Former Yugoslavia and Rwanda are however ad hoc in nature and are considered exceptional exercises of the UN Security Council’s Chapter 7 powers. On the other hand, while the ICC is a permanent institution, it is intended to be “complementary 120 William Burke-White, Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation, 42 Harv’ Int’l L.J, 467, p 499-509 8 to national legal system”.121 Article 17 of the ICC’s Statute give national legal systems “the first bite” when addressing international crimes. The ICC is only allowed to assume jurisdiction if the State investigating or prosecuting the crime is “unwilling or unable genuinely to carry out the investigation or prosecution”.122 It also states that a State will be deemed “unwilling” if national proceedings or decisions relating to the case were undertaken “for the purpose of shielding the person concerned from criminal responsibility”; if there has been “an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice or if the proceedings are not conducted independently or impartially and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person to justice”.123 Jurist have pointed out that the ICC’s deferential approach to national authorities does not impose on member States the obligation criminally prosecute international criminals. A plain reading of Article 17’s restricted admissibility provisions precludes the ICC’s jurisdiction as long as the State investigates the crime.124 In other words, it is open for States to argue that reconciliation as a legitimate reason for deciding not to criminally prosecute international criminals after investigating them. 3. Examining soft law sources While it is not clear if aut dedere aut judicare treaty provisions and actual State practice establish the finding of such a mandatory obligation to prosecute international 121 Art 1, Rome Statute of the International Criminal Court [hereinafter known as the ICC Statute], U.N. Doc. A/CONF.183/9, 17 July 1998 available at www.un.org/law/icc 122 Art 17 (1), Id 123 Art. 17(2), Id 124 Michael Scharf, The Amnesty Exception to the International Criminal Court, 32 Cornell Int’l L.J. 507 at 525 9 crimes, non-binding soft law sources veer strongly in favour of such an obligation. Due to the non-binding nature of these sources, it should be borne in mind that the exact status of such non-binding declarations and statements of international law is uncertain at international law. At the very most, they have been considered as evidence of customary international norms.125 If so, concrete State practice to the contrary, as laid out in the section above, clearly contradicts the existence of such norms. Among sources most often cited by jurists seeking to establish such a mandatory obligation are the 1967 Declaration on Territorial Asylum, the 1970 United Nations Resolution on War Criminals, the 1973 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, the 1989 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions and the 1992 Declaration on the Protection of All Persons From Enforced Disappearances which call upon States to prosecute perpetrators of war crimes, crimes against humanity and extra-legal, arbitrary or summary executions.126 However, most of these declarations were not intended to have 125 This has been the approach of the ICJ in the Nicaragua Case (Merits) I.C.J. Reports 1984; Legality of the Threat or Use of Nuclear Weapons Case, I.C.J. Reports 1996. See however Weil, supra note 99 at 417, who argues that while it is undeniable that such soft norms influence State decisions and action on the international arena, there is nonetheless a “normative gap” between them and traditional conventional and customary law. 126 Declaration on Territorial Asylum, G.A. Res. 2312, 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967), stating that “states shall not grant asylum to "any person with respect to whom there are serious reasons for considering that he has committed a ... crime against humanity"; United Nations Resolution on War Criminals, G.A. Res. 2712, 25 U.N. GAOR Supp. (No. 28) at 78-79, U.N. Doc. A/8028 (1970) "call[ing] upon the states concerned to bring to trial persons guilty of such crimes"), reprinted in BASSIOUNI, supra note 67, at 698; G.A. Res. 2840, 26 U.N. GAOR Supp. (No. 29), at 88, U.N. Doc. A/8429 (1971) affirming that a state's refusal "to cooperate in the arrest, extradition, trial and punishment" of persons accused or convicted of crimes against humanity is "contrary to the United Nations Charter and to generally recognized norms of international law"; Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074, 28 GAOR Supp. (No. 30) at 79, U.N. Doc. A/9030 (1973) stating that crimes against humanity "shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment", reprinted in 13 I.L.M. 230 (1974); Principles on the Effective Prevention and Investigation of Extra-Legal, 0 any binding legal effects. For example, historical records of the Declaration on Territorial Asylum show that a majority of its members stressed that it was not intended to establish or change existing international law but “to lay down broad humanitarian and moral principles”.127 In other words, its members envisaged the Declaration to be aspirational in intent rather than binding in nature. State practice demonstrates that while there is widespread, consistent consensus on the what crimes amount to breaches of jus cogens norms and on the existence pf erga omnes obligation on States not to commit such crimes, there has yet to be consensus on the existence of an erga omnes obligation on post-conflict societies to criminally prosecute international criminals. State practice demonstrates that while there is clearly an obligation on States to address international crimes committed during times of conflict, it is not clear if such an obligation should always take the form of criminal prosecution. This becomes especially clear when the conflicting State practice as set out above is considered against international developments concerning reconciliatory justice. C. Considering the emerging trend in Reconciliatory Justice 1. The rise of the truth and reconciliation commission Truth and reconciliation commissions were first used by various Latin American States emerging from periods of harsh military rule. Hayner in her seminal work on truth Arbitrary and Summary Executions, G.A. Res. 1989/65 (1989) stating that states shall bring to justice those accused of having participated in extra-legal, arbitrary, or summary executions; Declaration on the Protection of All Persons From Enforced Disappearances, G.A. Res. 47/133 (1992) requiring states to try any person suspected of having perpetrated an act of enforced disappearance) 127 1967 U.N.Y.B. 759. 1 commissions defines these commissions as institutions which (1) focus on the past, (2) investigate a pattern of abuses over a period of time, rather than a specific event, (3) temporary in nature, typically in operation for 6 months to 2 years, and (4) officially sanctioned, authorized or empowered by the State (and sometimes also by the armed opposition.128 Hayner notes that according to this definition, there have been 21 truth commissions established from 1974 though they have been known by different names such as “commissions on the disappeared”, “truth and justice commissions” or even a “historical clarification commission”. Truth and reconciliation commissions generally do not aim at pursuing or establishing individual accountability, but rather act in the interest of national reconciliation. In 1995 the South African Truth and Reconciliation Commission became the first truth and reconciliation commission to include within its mandate the finding of individual accountability for crimes within its jurisdiction.129 The South African Truth and Reconciliation Commission breathed new legitimacy into the concept of truth and reconciliation commissions by repackaging it as an alternative form of transitional justice which did not compromise on individual accountability. The South African Truth and Reconciliation Commission set in place a system of individualized amnesty applications which required an applicant to reveal details of any political crimes committed during South Africa’s apartheid regime in order to qualify for amnesty. Those who did not meet the amnesty’s conditions or the cut-off date were potentially liable to be criminally 128 HAYNER, supra note 60 at 14 NO. 34 of 1995: Promotion of National Unity and Reconciliation Act, 1995, 26 July 1995, preamble stating “To provide…the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of the conflicts of the past during the said period” 129 2 prosecuted. Over 7000 applications were received by the Commission. The public, individualized nature of these hearings was seen as essential to ensuring individual accountability. When deviation from these rules occurred in a case whereby a mass inchambers hearing of 27 ANC applications was conducted by the Commission, it found its decision overruled by the South African High Court which held that all 27 applications were to be reconsidered individually by the Commission in public hearings. 130 Public response towards the South African Truth and Reconciliation Commission has differed from that towards earlier Latin American truth commissions. Despite the fact that criminal prosecutions were eventually taken in Argentina in response to its truth commission’s report, Argentina’s general population remains generally cynical towards the truth commission’s attempts at achieving reconciliation.131 While the South African Truth and Reconciliation Commission has had its critics, South Africans seem generally more willing to embrace the commission’s aims of reconciliation and forgiveness. It appears that macro reconciliation on the national level is not possible and even farcical without dealing with reconciliation on the micro level between individuals directly impacted by crimes committed during times of conflict. Reconciliatory justice has also been given a boost by the increasing recognition of the victims’ right to truth.132 The right of victims to truth has been recognized in various UN documents. The 1997 report on the question of the impunity of perpetrators of human 130 For an overview of the South African Truth and Reconciliation Commission’s activity, see generally, Tama Koss, South Africa’s Truth and Reconciliation Commission: A Model for the Future, 15 Fla. J. Int’l. L. 517 131 Id at 160-161 see interviews carried out by Hayner with victims among one of which who says that reconciliation is viewed as “a code word for those who wanted nothing done” 132 Juan E.Mendez, Siracusa Impunity Conference: The Right to Truth, 14 Nouvelles Etudes Penales 1998 3 rights violations by Special Rapporteur Joinet describes this right as “inalienable”, consisting of the “imprescriptible right to know the truth about the circumstances in which violations took place and in the event of death and disappearance, the victim’s fate”.133 This right is confirmed in the latest draft of guiding principles for combating impunity for international crimes prepared by Rapporteur Bassiouni. 134 The Human Rights Commission has specifically confirmed the right of the victim’s family to know about the fate of a “disappeared” victim.135 This right to truth is seen as necessary to the victim’s rehabilitation. Proponents of truth commissions argue that the victim’s right to truth and rehabilitation will be more adequately met through reconciliatory justice rather than through adversarial court processes of criminal justice which sideline the victim with its many procedures and focus on the wrongdoer. 2. Trends of reconciliatory justice in times of peace a) Reconciliatory justice as a new response to crime The last decade has seen the rise of the reconciliatory justice not only in postconflict societies but in politically stable societies which have a tradition of criminal justice. This movement has been advanced under different labels such as transformative justice, relational justice, community justice, restorative justice and reconciliatory justice. All these models share one thing in common in that rather than focusing on the offender 133 Question of the impunity of perpetrators of human rights violations (civil and political), final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119, U.N. Commission of Human Rights, 49th Sess., U.N.Doc. E/CN.4/Sub.2/1997/20/Rev.1, Principle 1 134 The right to restitution, compensation and rehabilitation for victims of grossviolations of human rights and fundamental freedoms, Final report of the Special Rapportur Mr. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/93, Commission on Human Rights, 56th Sess., U.N. Doc. E/CN.4/1999/65 135 CDH-ONU “Quinteros vs. Uruguay” Case No. 107/1981 4 and his wrongdoing, the harm and impact of the wrongdoing are focused on instead. According to restorative justice theorists, crime results in harm not only to direct victims but also to the community. Restorative justice processes are aimed at achieving equity between the offender and the victim as well as between the offender and community. This is achieved by victim compensation, educating the offender of the victim’s harm and taking into consideration the concerns of all stakeholders. Proponents of restorative justice criticize criminal justice as focusing excessively on the offender to the disadvantage of other parties directly or indirectly affected by the offender’s act.136 There is a clear rise in the use of reconciliatory justice processes as supportive or alternatives to criminal justice in many countries. Advocates of reconciliatory or restorative justice processes alongside criminal justice argue that the criminal justice process insufficiently addresses the harm suffered by the victim or the needs of the offender and community. Such efforts have been largely ad hoc in nature. Victimoffender meetings are organized in prisons in the US, Canada, Belgium and the Netherlands. In Canada, faith-based circles of support facilitate reintegration programmes for criminals perceived as high-risk by the community. 137 Apart from such ad hoc reconciliatory or restorative justice processes which supplement the criminal justice system, some countries have formally incorporated reconciliatory justice into their mainstream justice systems. This is especially so in the fields of juvenile justice and 136 Report of the Secretary General to the Commission on Crime Prevention and Criminal Justice, U.N. ESCOR, Commission on Crime Prevention and Criminal Justice, Eleventh Session, U.N. Doc. E/C.N15/2002/5 (2002) at 3 [hereinafter 2002 Secretary General Report to the Crime Commission] 137 David Van Ness, Restorative Justice: International Trends, presented at Victoria University, Wellington, New Zealand, October 7, 1998 p5-7 5 family law in which restorative processes have been instituted as preferred alternatives to criminal justice.138 Restorative justice principles have also been recognized by the international community in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice and the United Nations Guidelines for the Prevention of Juvenile Delinquency.139 Furthermore, in recent years, restorative justice is no longer seen by the international community as an alternative form of justice embraced by certain States but as principles of justice which are of universal importance and application. The United Nations Office of Drugs and Crime’s (UNODC) 10th Congress on the Prevention of Crime and the Treatment of Offenders in 2000 discussed and adopted a plan of action on restorative justice.140 This resulted in the Vienna Declaration on Crime and Justice: Meeting the Challenges of the 21st Century which laid out certain guidelines on restorative justice.141 This has been further developed and adopted in 2002 by the UN Economic and Social Council.142 The draft declaration defines restorative justice program as “any process in which the victim, the offender and/ or any other individuals or community members affected by 138 Id Convention on the Rights for the Child, 20 November 1989, Art. 40 ;United Nations Standard Minimum Rules for the Administration of Juvenile Justice, adopted by G.A. Res. 40/33 (1985), United Nations Guidelines for the Prevention of Juvenile Delinquincy, adopted by G.A. Res. 45/112 (1990) Principle 17; , Part IV 140 Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. ESCOR, Vienna, 10-17 April 2000: report prepared by the Secretariat (United Nations publication, Sales No. E.00.IV.8) 141 Vienna Declaration on Crime and Justice: Meeting the challenge of the 21st century, Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. ESCOR, U.N. Doc. A/CONF.187/4/Rev.3 142 Revised Draft Principles on the use of Restorative Justice programmes in Criminal Matter, U.N. ESCOR, 11th Sess., U.N. Doc. E/C.N.15/2002/5/Add.1 139 6 a crime actively participate together in the resolution of matters arising from the crime, often with the help of a fair and impartial third party”.143 These processes are to be available at “any stage of the criminal process” and should only be undertaken with the “free and informed consent” of all parties involved.144 The draft contains only a few substantive principles on restorative justice due to a lack of consensus. While some participants feel that consent to restorative justice processes is imperative, others feel that despite the lack of such consent restorative justice processes should still be “encouraged” or even “compelled”.145 Some participants see restorative justice as a supplement to the traditional criminal justice system while others see it as an alternative. 146 b) Reconciliatory justice as part of the indigenous law movement The increasing legitimacy of restorative justice has also been promoted through the indigenous rights movement. Indigenous communities culturally and historically practise more communal and restorative forms of justice. The indigenous selfdetermination movement has brought with it new legitimacy to indigenous methods of dispute settlement.147 Though exact dispute settlement mechanisms differ from community to community and from tribe to tribe, they have in common certain characteristics. Among them is an emphasis on a restorative and communal rather than adversarial or retributive 143 Id at para 3 Id at para 6, 7 145 2002 Report of the Secretary General to the Crime Commission, supra note 136 at para. 38 146 Id at para. 24 147 Indigenous self-government in criminal law is not specifically recognized due to crime being perceived largely as the minimal necessary domain of the State, Draft United Nations Declaration on the Rights of Indigenous Peoples, Res. 1994/45, U.N. ESCOR, U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56 (1994) at art. 33, 144 7 dispute settlement framework. The goal of such dispute settlement mechanism is not to punish the perpetrator but to repair harmed relationships resulting from the wrongdoer’s actions. These harmed relationships include that of the victim vis-à-vis the offender and that of the community vis-à-vis the offender. Examples of such indigenous dispute settlement mechanisms are sentencing circles and elder panels practiced by the Canadian indigenous peoples. 148 The Canadian government has recognized indigenous dispute settlement mechanisms as a real alternative to the State’s criminal justice system in cases involving indigenous peoples as provided for in Section 718.2 (e) of the Federal Criminal Code which directs federal judges to consider sentencing circles as an alternative to criminal imprisonment.149 In summary, it may be argued that international law as it currently stands today does not yet impose a mandatory obligation on post-conflict societies to criminally prosecute perpetrators of international crimes. At the same time, State practice demonstrates the rise of the popularity and legitimacy of reconciliatory justice practices. The next section will see that, notwithstanding the fact that there has yet to crystallize at international law a mandatory obligation on post-conflict societies to criminally prosecute international criminals, the UN in the case of Timor Leste did perceive criminal prosecution of international crimes as an issue that should not be left to 148 Melissa S. Williams, Democracy and Punishment: Criminal Justice, Democratic Fairness and Cultural Pluralism: The Case of Aboriginal Peoples in Canada, 5 Buff. Crim. L. Rev 149 The Queen v. Gladue [1999] 1 S.C.R 688 para. 70 8 the discretion of the population. Timor Leste’s post-conflict justice system as set up by UNTAET will be examined in detail in the following section. 9 V.TIMOR LESTE’S POST CONFLICT JUSTICE SYSTEM Throughout East Timor’s 1999 conflict, the international community has consistently maintained that there exists an obligation to criminally prosecute perpetrators of international crimes. The Commission on Human Rights in a 1999 Report stated that “the international community has a duty to do its utmost…(in) bringing those responsible (for violations) to justice and [again a word missing? So that?] that the perpetrators of gross violations must be made accountable and justice rendered to the victim”.150 A group of UN Special Rapporteurs visiting East Timor in 1999 stated in their report to the UN that perpetrators of international crimes in East Timor should be tried before national criminal courts and if not they should be brought to justice “under a broader, universal jurisdiction” before an international criminal tribunal.151 A. The Serious Crimes Panels Pursuant to the UN’s stand, UNTAET set up the Serious Crimes Panels to try perpetrators of war crimes, genocide and crimes against humanity.152 The Serious Crimes Panels belong to the new breed of post-conflict justice institutions which have been described by jurists as “hybrid” tribunals. Such “hybrid” tribunals are quickly replacing 150 Report of the High Commissioner for Human Rights on the human rights situation in East Timor, U.N. ESCOR, Commission on Human Rights, Fourth Special session 23-24 Sept. 1999, U.N. Doc. E/CN.4/S4/CRP.1 (1999) at Para 4 151 Situation of human rights in East Timor: Note by the Secretary General (Human rights questions: human rights situations and reports of special rapporteurs and representatives), U.N. GAOR, 55th session, U.N. Doc. A/54/660 (1999) at Para 65 and 74 (7) 152 UNTAET Reg. 2000-15, supra note 2 0 international tribunals as primary vehicles of the international community in the prosecution of international criminals.153 The “hybrid” nature of these tribunals derives from the fact that both local and international judges sit on these tribunals which are also staffed by both international and local personnel.154 These tribunals are empowered to apply international law and local law with the former taking precedence in the event of inconsistencies between the two legal regimes. Such hybrid courts have been set up either by agreements between the UN and the local government as in the case of Sierra Leone or Cambodia, or pursuant to the executive powers vested in respective UN Transitional Administrators by the UN Security Council as in the case of Timor Leste and Kosovo. Unlike international tribunals such as the International Criminal Tribunals of Yugoslavia and Rwanda which remain directly responsible to the UN Security Council, these “hybrid” tribunals are situated within, and subject to the domestic legal system. The enforcement jurisdiction of these tribunals is also limited to the territory over which the UN Security Council has authorized the concerned UN administration to act. In the case of UNTAET this would be the territory Timor Leste. The Serious Crimes Panels exercises exclusive jurisdiction over “serious crimes”. The phrase “serious crime” has been borrowed from the Indonesian Penal Code that 153 The main reason for this shift from international tribunals to using “hybrid” tribunals is due to the reluctance of the UN SC to fund any more expensive international tribunals. As recorded by Cohen, the Timorese tribunal’s budget for 2001 was approximately $630,000 compared to $20,000,000 allocated to the Sierra Leone tribunal and $100,000,000 annual budgets of the ICTY and ICTR. Cohen has criticised the UN’s proceeding “on the cheap” in the case of Timor using the tribunal’s “hybrid” status as an excuse in addressing issues of chronic under-funding and under-staffing, see David Cohen, Seeking Justice on the Cheap: is the East Timor Tribunal Really a Model for the Future, Analysis from the East-West Center, No. 61, August 2002 154 The Kosovo Ethnic and War Crimes Court, SCP and Sierra Leone tribunal share all these characteristics while differing in procedure and funding details. Sierra Leone’s prosecutor, international judges and registrar are appointed by the UN SG while local judges are appointed by the government of Sierra Leone, see Statute of the Special Court of Sierra Leone, Art 13, 15(3), 16. The SCP judges are appointed directly by the Transitional Administrator see UNTAET Regulation 2000-11, supra note 2 s10.3 1 differentiates between serious crimes and misdemeanours. However in the context of the Serious Crimes Panels, “serious crimes” refer to genocide, war crimes, crimes against humanity, torture as well as murder and sexual offences committed between 1 January 1999 to 25 October 1999. Section 3 of Regulation 2000-15 which sets out the Serious Crimes Panel’s subject matter jurisdiction, empowers the Serious Crimes Panels to apply East Timor law which includes UNTAET regulations and “where appropriate, applicable treaties and recognized principles and norms of international law”.155 Regulation 2000/11 which sets up the structure of newly independent Timor Leste’s judiciary anticipates the establishment of the Serious Crimes Panels and states that each judicial panel of the Serious Crimes Panels should consist of two international judges and one local Timorese judge.156 The Serious Crimes Panels has exclusive and unlimited temporal subject matter jurisdiction over war crimes, genocide, crimes against humanity and torture. It also has exclusive jurisdiction over murder and sexual offences if these crimes are committed from 1 January 1999 to 25 October 1999. 157 One interesting fact to be noted about the Serious Crimes Panels’ substantive jurisdiction is the fact that while its jurisdiction over war crimes, genocide, crimes against humanity and torture is temporally unlimited, it only has jurisdiction over sexual offences and murder if they are committed from 1 January 1999 to 25 October 1999. These dates refer to the time period between Habibie’s announcement of Indonesia’s intention to hold a referendum for East Timor and the date on which INTERFET assumed authority over 155 Reg 2000-15 supra note 2, s3 Regulation 2000-11supra note 2, s10.4 157 The exact definitions of these crimes draw on the ICC’s definitions of these crimes. Despite having subject matter jurisdiction over war crimes, genocide, torture and crimes against humanity, the SCP has generally charged accused with crimes against humanity due to the particular citcumstances of Timor’s conflict. 156 2 the territory. Murder and sexual offences occurring during this time period were specifically included within the Serious Crimes Panels’ exclusive jurisdiction despite their status as non-international crimes due to the circumstances of the 1999 conflict. By 1999, Timorese pro-independence forces were generally much reduced in size and focused on defending themselves rather than orchestrating attacks on pro-Indonesian groups. Therefore the acts of these pro-independence groups do not easily fall into any of the recognized categories of international crimes including that of crimes against humanity which are required to be “systematic” and “widespread”. Also it is not clear if East Timor’s 1999 conflict can be characterized at international law as an international or non-international conflict in which war crimes law would apply. If Timor’s 1999 conflict is characterized as a mere insurgency, then war crimes law will not apply. By endowing the Serious Crimes Panels with exclusive jurisdiction over murder or sexual offences occurring during Timor’s 1999 conflict alongside its exclusive jurisdiction over international crimes, UNTAET sought to ensure that the Serious Crimes Panels will address crimes committed by both sides during the 1999 conflict. Despite this, Indonesian authorities continue to see the Serious Crimes Panels as a victor’s tribunal and criticize its failure to sufficiently deal with crimes by pro-independence groups especially those occurring before 1999.158 As stated above, the Serious Crimes Panels’ jurisdiction over genocide, war crimes, crimes against humanity and torture is not limited to the 1999 time period. This affords a unique opportunity for the Serious Crimes Panels to address particularly heinous 158 Interview with Kagilis, lawyer for defendant Soares in the first case heard before Indonesia’s ad hoc human rights court, on file with author (23 December 2003) [hereinafter interview with Kagilis] 3 incidents in Timor’s history such as the 1995 Santa Cruz Massacre.159 However, due to the destruction of evidence over time as well as a lack of resources, the Serious Crimes Panels’ policy has been to focus on crimes committed during 1999. B. The Commission for Reception Truth and Reconciliation In June 2000 local Timorese leaders in the National Council for Timorese Resistance (hereinafter to be known as the CNRT) proposed that a Commission for Reception and National Reconciliation (hereinafter to be known as the Reconciliation Commission) be set up to facilitate national reconciliation in Timor Leste. 160 This was not the first time that local Timorese leaders had discussed the idea of reconciliation. Prior to the 1999 referendum, CNRT leaders had many times discussed the need for reconciliation in a post-independent East Timor and prepared for it by setting up a social, economic and reconciliation department within the CNRT’s shadow government.161 Though the idea of reconciliation was actively discussed within the CNRT, it remained a vague aspiration.162 159 TAYLOR, supra note 5 The CNRT (Conselho Nacional da Resistance Timorese) was set up in 1998 as a coalition of proindependence local Timorese political parties. The final CNRT Congress was held in 2000 prior to elections in which the various political parties campaigned independently under their own banners. The background has been obtained from: The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation, by Piers Pigou for for UNDP Timor-Leste, April 2004, 1-22 [hereinafter Pigou Report for UNDP] 161 Interview with Anaceto, Chairman of Timor Leste’s Commission for Reception, Truth and Reconciliation,on file with author (8 January 2004). A lawyer by profession, Anaceto is a prominent figure in pre-independence and post-independence Timor. He has been an active member of Resistencia Nacional dos Estudantes de Timor Leste (RENETIL) since 1989; is co-founder of Yayasan Hak, now known as Perkumpulan Hak, the largest human rights non-governmental organization in Timor Leste; served on the UNTAET Judicial Transitional Services Commission since January 2000 and was a founder of the Jurists Association of East Timor in April 2000 [hereinafter interview with Anaceto] 162 Id 160 4 It was only during the CNRT’s Congress in August 2000 that the CNRT called upon the UN to design a concrete program of reconciliation for Timorese society. UNTAET’s Human Rights Unit then facilitated the setting up of a Steering Committee charged with the conceptualisation of such a commission. This Steering Committee was made up of 19 to 20 persons from CNRT, Timorese NGOs, women groups, youth groups, ex-political prisoners, churches and other prominent civil leaders.163 Several international consultants were also involved. The Steering Committee then made presentations and received feedback from the Cabinet of the East Timor and the National Council. A national consultation and feedback exercise was also conducted by the Steering Committee in all of Timor Leste’s 13 districts. UNTAET’s human rights and legal affairs department then prepared the Reconciliation Commission’s constitutive document based on the recommendations and findings of the Steering Committee. In January 2001, this draft legislation was passed and ratified by Timor Leste’s Cabinet and National Council respectively. On 13 July 2001 it was promulgated by the UN Transitional Administrator as Regulation NO. 2001/10. Six months later after the appointment of the Commission’s National Commissioners, the Reconciliation Commission was up and running. The Reconciliation Commission’s objectives as laid out in Regulation 2000/10 are to facilitate: 164 (a) inquiring into human rights violations.. (b) establishing the truth regarding past human rights violations… (c) reporting the nature of the human rights violations… 163 164 Id Regulation 2000/10, supra note 2, s 3.1 5 (d) identifying practices and policies, whether of State or non-State actors which need to be addressed to prevent future recurrences of human rights violations (e) the referral of human rights violations to the Office of the General Prosecutor… (f) assisting in restoring the human dignity of victims (g) promoting reconciliation (h) supporting the reception and reintegration of individuals who have caused harm to their communities through the commission of minor criminal offences and other harmful acts through the facilitation of community based mechanisms for reconciliation (i) the promotion of human rights The Reconciliation Commission is organized into four main sections charged with truth-seeking, recommendation setting, victim healing and community reintegration. The community reintegration department is charged with carrying out community hearings which seek to establish individual accountability for non-international crimes carried out in the context of Timor’s occupation by Indonesia. Regulation 2000/10 Part IV that deals with Community Reception Procedure (hereinafter reconciliation hearing) focuses largely on what happens prior to the actual reconciliation hearing, after the hearing and the Reconciliation Commission’s interactions with the Serious Crimes Panels. Very little is stated on the exact process and procedure to be followed during the reconciliation hearing itself. The reconciliation process is set in motion by the applicant submitting a statement to the Commission containing a full description of the relevant acts to be dealt with during the hearing; an admission of the 6 applicant’s responsibility; the link of such acts with the political conflicts in East Timor, the specific community in which the applicant wishes to undertake reconciliation and the renunciation of the use of violence to achieve political objectives.165 Section 22.4 states that the Reconciliation Commission is required to ensure that the applicant’s admission of responsibility is “based on a full appreciation of the nature and consequences of such admission” and his request to participate has been “voluntary”.166 Among the consequences referred to is that a copy of the applicant’s submission will be sent to the Serious Crimes Unit or Prosecutor’s office which may be used against him in a court of law if the Serious Crimes Unit decides to exercise jurisdiction as provided under the regulation.167 Two National Commissioners are designated as responsible for each of the 16 regions of Timor Leste. Such allocation is made based on the Commissioner’s own personal link with the said community.168 The work of the reconciliation hearing committee is organized to progress region by region. As preparation, two staff members from the Reconciliation Commission will be charged with going from village to village explaining and promoting the work of the Commission so as to encourage submissions from potential deponents.169 Statements are collected, sent to the Reconciliation Commission’s Statements Committee and assessed if they are suited for a reconciliation hearing.170 In making such decisions, the Reconciliation Commission’s Statements 165 Id, s23 Id, s 22.4 167 Id, s. 23.3 168 Interview with Ben Larkin, International Advisor to Timor Leste’s Commission on Reception, Truth and Reconciliation, on file with author (29 December 2003) [hereinafter interview with Larkin] 169 Id, Larkin observes that Timorese are usually reluctant to come forth. While the Commission is not allowed to solicit applications but approaches local village leaders to help in approaching individuals whom they know may have been involved in such crimes. 170 Regulation 2000/10, supra note 2 s. 24.1-3 166 7 Committee is required to consider the nature of the applicant’s crime such as whether it involved injury or property destruction, the total number of acts committed and the applicant’s actual role.171 If deemed suitable for a reconciliation hearing, the case is passed to the relevant Regional Commissioner and a temporary waiver of prosecution in relation to the acts admitted by the deponent is granted by the Serious Crimes Unit.172 The organization of the reconciliation hearing is then undertaken by the Regional Office in which the wrongdoing is admitted to have taken place. If the wrongdoing occurred within the context of more than one region the Regional Commissioner may refer the case to other Regional Offices or arrange for the hearing to involve representatives, victims or witnesses from other Regions.173 A Reconciliation Panel which is to function as a mediator during the CRP is then set up by the Regional Commissioner consisting of 3 to 5 persons. The composition of such a panel is to be made in consultation with local “community leaders” and with “appropriate gender representation”.174 In practice Reconciliation Panels have consisted of youth representatives, respected women activists and village elders. 175 A reconciliation hearing generally takes place over one or two days and may involve deponents ranging from a couple to over 30 especially when entire militia groups are involved.176 One or two days before the reconciliation hearing, the Reconciliation Commission holds separate briefings for the Reconciliation Panel, the applicants and the victims. These briefings prepare the participants for what to expect during the hearing 171 Id, Schedule 1 Id, s. 25.1, 25.3 173 Id, s. 25.2 174 Id, s. 26.1 175 Interview with Larkin, supra note 169 176 Id 172 8 itself and emphasize to them the hearing’s reconciliatory aim.177 The actual procedure to be followed during the reconciliation hearing is flexible and left to the discretion of the Reconciliation Panel. Section 27.2 of Regulation 2000/10 explicitly states that the Reconciliation Panel “may determine its own procedure” for the reconciliation hearing.178 This flexibility is subject to general principles governing the treatment of persons laid out in s. 35 of Regulation 2000/10 which requires that individuals be “treated with compassion and respect for their dignity”; “equally and without discrimination of any kind”; that “appropriate measures” are undertaken to “minimize inconvenience …protect privacy” “safety”; that access to a language of choice is respected and that persons are informed of the Reconciliation Commission’s role, their rights and consequences of violating the Reconciliation Commission’s orders.179 During the reconciliation hearing, victims and applicants are generally given equal turns to speak and to tell their sides of the story.180 The panel and audience are allowed to interrupt the speakers with questions.181 The Regulation however requires the Reconciliation Panel to discontinue hearings if during the hearing itself evidence of any serious crime falling within the exclusive jurisdiction of the Serious Crimes Panels is revealed. The Reconciliation Panel 177 Id, Larkin observes that “For the perpetrators, to give them some idea about what they might want to consider saying to facilitate reconciliation. Many of them want to say that they didn’t do that much, they also want to say who their bosses were, and what really went on to give their actions context. For example they may say yes I burnt a house but all the houses were burnt. We agree that the context is important but we also emphasize that the importance is to talk about what you did. That people came to hear you talk about you and not you blame other people” 178 Regulation 2000/10, supra note 2, s. 27.2 179 Id, s. 35 180 Id, s. 27.3, Regulation 2000/10; Interview with Larkin, supra note 169; Interview with Father Jovito, Vice-Chairman of Timor Leste’s Commission for Reception, Truth and Reconciliation, on file with author (4 January 2004) Since 1996, Father Jovito has served as a Catholic Priest in the Dili Diocese since 1996 and is President of the Diocese’s Catholic Youth Commission of Dili Diocese. [hereinafter interview with Father Jovito] 181 Id 9 is also allowed to discontinue the hearing if any applicant proves uncooperative and refuses to answer questions posed to him or her.182 The end objective of a reconciliation hearing lies in the conclusion of a Community Reconciliation Agreement (hereinafter to be known as reconciliation agreement), defined in Section 27.7 of Regulation 2000/15 as an “act of reconciliation” and which may include community service, reparation, public apology and/or other acts of contrition.183 The panel may go to and fro between victims and applicants to determine what kind of reconciliatory act is acceptable to them respectively in an attempt to arrive at an agreement.184 Most victims have been satisfied with an apology.185 In other cases some form of community service are required.186 The reconciliation agreement is to include a description of acts established during the hearing, the applicant’s admission of responsibility for such an act, the applicant’s apology, the agreed upon act of reconciliation, the time limit for the said act’s completion and the signatures of the parties.187 It is only upon completion of a reconciliation agreement that the temporary waiver of prosecution granted by the Serious Crimes Unit to the applicant crystallizes into immunity.188 Failure to arrive at a reconciliation agreement results in this temporary waiver being lifted and the deponent is open to future prosecutions for his admitted wrongdoings.189 182 s. 27.4, s27.6 Regulation 2000/10 s. 27.7, Regulation 2000/10 184 Interview with Larkin, supra note 169 185 Id, Interview with Father Jovito, supra note 180 186 Interview with Larkin, Id; Interview with Father Jovito, Id 187 Regulation 2000/10, supra note 2, s. 27.8 188 Id, s. 32 189 Id, s. 30; note that s 23.3 states that the deponent should be informed by the Commission that any statement made may be used against him in a court of law if the Prosecutor chooses to exercise jurisdiction. 183 0 The Reconciliation Commission is expected to give priority to acts occurring during the 1999 conflict.190 While the Reconciliation Commission’s jurisdiction was first limited to purely non-serious crimes, time and resource pressures on the Serious Crimes Panels have resulted in the amendment of the Commission’s jurisdiction “in principle” to non-serious crimes. The Commission has heard its first reconciliation hearing involving a serious crime.191 C. Examining the Interaction between the Serious Crimes Panels and the Reconciliation Commission The Serious Crimes Panels’ authority is ever-present throughout the reconciliation process. The Reconciliation Commission’s Statements Committee is required to send a copy of the applicant’s initial statement to the Serious Crimes Unit.192 If upon investigation the Prosecutor decides that acts detailed in the applicant’s statement amount to a serious crime and decides to exercise jurisdiction, the Reconciliation Commission is forbidden to proceed with the hearing and required to inform the applicant of the Prosecutor’s decision.193 If the Prosecutor decides not to exercise jurisdiction or fails to inform the Reconciliation Commission of its wish to do so within 2 weeks, the Reconciliation Commission is free to take a decision on whether to proceed with the reconciliation hearing. 194 190 Id, s 22.3, Part 4 Chris McCall, Old Grievances fester as Justice System Calls, South China Post, 13 March 2003 192 Id, s. 24.5 193 Id, s. 24.6 194 Id, s. 24.7 191 1 As mentioned above once the Statements Committee has decided to exercise jurisdiction and passed a case to the relevant Regional Commissioner, a temporary waiver of prosecution from prosecution is then in place in relation to the acts admitted in the deponent’s application. 195 This temporary waiver can however be lifted if any evidence of serious crimes being committed arises during the deponent’s hearing, if a reconciliation agreement fails to be agreed upon, if the deponent fails to perform the agreed upon reconciliation agreement or if the Serious Crimes Unit discovers evidence of other serious crimes not stated in the deponent’s application for which prosecution may proceed.196 The criminal justice system also plays an important role in ensuring the performance of reconciliation agreements. Reconciliation agreements are registered as court orders with the District Court of the Region in which the reconciliation hearing took place.197 A deponent who fails to perform obligations under a reconciliation agreement is deemed to have committed an offence punishable by a year’s imprisonment or less or a fine not to exceed USD 3000 or both.198 Any such failure to carry out a reconciliation agreement will also result in the deponent being open to prosecution for wrongdoings reflected in the reconciliation agreement. The formal legal system not only serves as a guarantee that the reconciliation agreement will be performed but also reviews the reconciliation agreement itself. Section 28.2 states that before a reconciliation agreement may be registered with the District 195 Id, s. 25.3 Id, s. 31 197 Id, s. 28.1 198 Id, s. 30.2 196 2 Court, the Court has to ensure that the reconciliation act stated in the reconciliation agreement is “reasonably proportionate” to the deponent’s wrongdoing and that it does not “violate human rights principles”.199 In essence, the Serious Crimes Panels and the Reconciliation Commission, establishes a two-track post-conflict justice system in Timor Leste. While both are premised on very different concepts of justice, they function simultaneously and run parallel to one another, separated only by their respective subject matter jurisdictions. As stated above, the UN was largely responsible for the setting up of the Serious Crimes Panels while the Reconciliation Commission was a local initiative. The next section will examine the objectives underlying the Serious Crimes Panels, taking into consideration the fact that an obligation to criminally prosecute international criminals has yet to crystallize at international law and the preference of local politicians for reconciliation over criminal prosecution. In particular it assesses if the Serious Crimes Panels and Reconciliation Commission have fulfilled their objectives from Timorese society’s perspective. 199 Id, s. 28.2 3 VI.ASSESSING POST-CONFLICT JUSTICE OBJECTIVES Given that there is no established mandatory obligation on transitional societies to prosecute perpetrators of international crimes and the increasing popularity and legitimacy of the reconciliatory justice movement, the question this section seeks to examine the rationale behind the UN’s preference for criminal justice over reconciliatory justice in addressing accountability for international crimes. This question is especially pertinent in the context of Timor Leste’s post-conflict society in which the UN chose to try international criminals for past crimes in Western-style criminal courts despite Timorese legal traditions of reconciliatory justice and her local political leaders’ expressed preference for reconciliation over the criminal prosecution of international crimes. A. Assessing the goals of Criminal Justice as perceived through Timorese eyes In a recent field study conducted by Pigou for the International Centre for Transitional Justice, Pigou observes how most Timorese demand that crimes such as murder be criminally prosecuted.200 A short summary of Timorese political history is necessary to understand why criminal justice continues to be demanded for certain crimes despite the existence of an indigenous dispute resolution system based on reconciliation. Prior to Timor’s colonization, all wrongs including murder were dealt with through 200 Crying Without Tears: In Pursuit of Justice and Reconciliation in Timor Leste: Community Perspectives and Expectations, by Piers Pigou for the International Centre for Transitional Justice, August 2003, available at www.ictj.org at 19-20 [hereiafter Crying Without Tears Report] 4 indigenous dispute settlement processes, subjecting perpetrators of such wrongs not to incarceration but requiring them to acknowledge their guilt, apologize, make compensation to the victim and undergo reconciliation ceremonies intended to appease the ancestors for the perpetrator’s breach of customary ancestral norms. 201 The introduction of Western-style courts into Timor by Portugal, and the insistence of colonizing powers such as Portugal and later on Indonesia on the use of these courts in serious cases due to the perceived inferiority of indigenous dispute resolution mechanisms, resulted in the formation of a dual-track system of justice in which indigenous dispute resolution mechanisms and the formal justice system functioned sideby-side.202 Most Timorese themselves see criminal justice as more retributive in nature than utilitarian in purpose, emphasizing the importance to punish the planners responsible for 1999’s mass murders and punish perpetrators proportionate to their guilt.203 At first sight such emphasis on retributive purposes may seem inconsistent with the reconciliatory nature of indigenous dispute resolution mechanisms in Timorese society. Retribution does play a big role in facilitating reconciliation in indigenous justice processes. While admission of guilt and compensation are often seen as insufficient to address criminal moral blameworthiness, Timorese society subscribes to different values. As mentioned above, Timorese society, being based on complex kin and clan inter-relationships 201 Reconciling Justice “Transitional” Law and State Judiciary in East Timor, by Tanja Hohe and Rod Nixon for the United States Institute of Peace, January 2003 at 11-21 [hereinafter Reconciling Justice Report] 202 Id at 15. where Hohe and Nixon observe how leadership in Timorese societies are structured along traditional and political lines. The former lies in the traditional religious leader of the village while the latter’s authority derives from the latter’s recognition. When colonizing powers attempted to take over political authority, the religious authority of traditional, religious leaders remained intact. in the liurai, whose authority passes along birthlines. 203 Crying without Tears Report, supra note 200 5 founded on systems of exchange, notions of compensation and restitution take on not only material importance but are infused with symbolic and ritualistic overtones.204 Timorese victims and community are usually only willing to reconcile with the wrongdoer after the wrongdoer has personally assumed responsibility commensurate to his wrongdoing. The cornerstone of retributive justice is that an accused should be punished commensurate to his moral blameworthiness. The criminal justice model installed by the UN in Timor Leste has failed to achieve this for two reasons. Firstly, the system put in place has failed to obtain jurisdiction, try and punish those individuals most morally responsible for the planning and orchestration of the 1999 conflict. Secondly the Serious Crimes Panels have failed to incorporate into judgments concerning low-ranking militia members, careful consideration of the dynamics of fear and intimidation which were at work in East Timor in 1999. The irony is that while those most morally responsible have managed to escape criminal justice, lower-ranking members appear to be punished out of proportion to their moral culpability.205 1. Timor’s post-conflict justice: Addressing high-level responsibility Establishing the role and guilt of top-ranking government officials for crimes committed during conflict is crucial so as to provide us with a complete picture of 204 Reconciling Justice Report, supra note 201 at 17-23 Interview with Amadio Hei, lawyer with Perkumpulan Hak, formerly known as Yayasan Hak, East Timor’s premier and largest human rights non-governmental organization, on file with author (5 January 2004) [hereinafter interview with Amado] Amado observes that while most Timorese have come to the realization that “everyone were victims in 1999” their dissatisfaction with the transitional justice system stems from the fact that “those who were here giving orders are not still in Indonesia giving orders.” 205 6 individual accountability. But actual complicity of these officials is often difficult and controversial to prove due to lack of clear evidence linking them to the actual crime and political resistance. In the case of East Timor, many top Indonesian military and governmental officials had profitable business monopolies in Timor and therefore had great personal interest in ensuring that Timor remained part of Indonesia. Eyewitness statements recount instances in which militia groups were trained and armed by military officers. The attendance of top-ranking government officials at militia inauguration ceremonies was reported by independent journalists and even captured on film.206 In response to accusations from international organizations and civil society of the Indonesian authorities’ involvement in East Timor’s 1999 conflict, Indonesia’s National Human Rights Commission set up an independent Commission of Inquiry into Human Rights Abuses in East Timor (hereinafter known as the Indonesian Commission of Inquiry) to investigate Indonesia’s actual role in Timor’s 1999 referendum-related conflict.207 In 31 January 2000 the Indonesian Commission of Inquiry issued its report confirming collaboration between militia and Indonesian army forces and recommending that the Indonesian Attorney General undertake investigations with regards to more than 100 named individuals.208 Aside from naming individuals and investigations, the 206 Mark Davis, A licence to http://www.abc.net.au/4corners/stories/s20270.htm kill, 15 March 1999, available 207 at The Indonesian National Commission on Human Rights is more popularly known as Komnas HAK which stands for “Komisi National Hak Asasi Manusia” that translates directly into National Commission on Human Rights. The Indonesian Commission of Inquiry is more popularly known KPP-HAM which stands for “Komisi Penyelidik Pelanggaran Ham di Timur-Timur” 208 Report of the Indonesian Commission of Investigation into Human Rights Violations in East Timor, 31 January 2000, available at http://www.smh.ou.au. An investigation team was also established in September 1999 by Indonesia’s National Commission for Human Rights (Komnas HAM). This body, called the Commission to Investigate Human Rights Violations in East Timor (KPP-HAM), recommended that 33 people, including six generals, should be further investigated the Indonesian Attorney-General Marzuki 7 Indonesian Commission of Inquiry’s report also recommended that the individuals be tried by a court of human rights.209 On 23 November 2000 the Indonesian Parliament passed the Human Rights Court Act No. 26/2000 which would allow the setting up of ad hoc human rights tribunals to try past human rights abuses including that of Timor’s 1999 conflict. So as to deflect the international community’s demands for an international tribunal, an ad hoc human rights tribunal was set up pursuant to Act No. 26/2000 to address East Timor’s 1999 conflict. 210 The court’s jurisdiction was limited to only 4 cases out of the 16 cases cited by the Indonesian Commission of Inquiry as primary but not exhaustive in their report.211 Out of the 100s named, the Attorney General only decided to proceed with 18 accused persons.212 At the court’s first instance, 12 of the accused were acquitted by the ad hoc human rights court while 6 others were convicted and given sentences not exceeding ten years of crimes against humanity.213 None were imprisoned while awaiting their appeals. Timbul Silaen, the Chief of Police for East Timor was later posted as Police Chief to Irian, another restive Indonesian province seeking independence from Indonesia.214 On Darusman for their role in the mass violence in East Timor. 209 Id at para 191, 198 210 See generally, Intended to fail: the trials before the ad hoc human rights court in Jakarta prepared by Professor David Cohen for the International Centre for Transitional Justice. [hereinafter Report on trials before the ad hoc human rights courts in Jakarta]Cohen also describes how judges and witnesses faced continual intimidation and harassment throughout the trials. 211 Id at 11. The four incidents focused on by the ad hoc human rights court were the Liquica Massacre, the attack on the Suai Church, the attack on Manuel Carrascalao’s house and the attack on Bishop Belo’s house. 212 Id at 56-59. High level accused indicted by the ad hoc human rights court include: Abilio Soares, former governor of East Timor; Timbul Silaen, Brigadier General and former police chief of East Timor; Adam Damiri, Major General and former chief of the Udayana Regional Military Command; Tono Suratman, Brigadier General and former East Timor military commander; Nuer Muis, Brigadier General and successor of Suratman. 213 Sian Powell, Time Runs out for Timor Justice, The Australian, 22 November, 2004, available at www.etan.org 214 Papua Police Move Criticized, BBC, 2 December 2003, available at http://news.bbc.co.uk/1/hi/world/asia-pacific/3255876.stm 8 appeal, the guilty sentences of all accused were later overturned on appeal except for Eurico Gutteres, the popularly known militia leader and Governor Soares. Both were sentences to 5 years and 3 years of imprisonment for their participation in crimes against humanity.215 Soares served three months of his three year sentence for crimes against humanity before being released on the final appeal of his case to the Indonesian’s Supreme Court.216 Gutteres served as leader of Indonesia’s ruling party’s youth wing and was reported to be heading a militia group in West Papua.217 Responding to international outcry, Indonesia’s newly appointed Attorney General has recently voiced the possibility of reopening these cases and in particular charging General Wiranto as recommended by the Indonesian Commission of Inquiry.218 However the Indonesian Constitutional Court has recently ruled that Law No. 26/2000 which forms the basis for the ad hoc human rights courts is illegal due to its retrospectivity. It remains to be seen what other initiatives to hold high-level perpetrators accountable for their crimes will go forward in Indonesia.219 The lack of political will to try and punish these high-ranking Indonesian officials is not only apparent on the part of Indonesia’s ad hoc human rights court. High-level politicians within the Timor Leste’s government openly favour reconciliation with 215 Jakarta rejects Timor’s Convictions, BBC, 6 August 2004, available at http://news.bbc.co.uk/1/hi/world/asia-pacific/3540762.stm 216 East Timor’s ex-Governor released from jail, Associated Press, 6 November 2004, available at www.etan.org; Soares has suggested that human rights violations relating to East Timor’s 1999 conflict should be dealt with via arbitration rather than through criminal trials, see, Former ET governor calls for arbitration in human rights cases, Asia Intelligence Wire Advertisement, 11 November 2004, available at www.etan.org 217 Timor’s Guterres Forms Papua Militia, South China Morning Post, 2 December 2003, available at www.etan.org 218 M.Taufiqurrahman, Reopening East Timor cases possible, says AGO, The Jakarta Post, 10 November 2004, available at www.etan.org 219 Indonesia Court holds retrospective prosecution unconstitutional: trials for East Timor go from bad to worst, Judicial System Monitoring Programme Press Release, 27 July 2004, available at www.jsmp.minihub.org 9 Indonesian leaders instead of subjecting them to criminal prosecution. President Gusmao of Timor Leste, who had prior to independence repeatedly called for Indonesian international criminals to be brought to justice, today openly opposes the Serious Crimes Panels’ indictment of major Indonesian military figures and has publicly promoted reconciliatory rather than criminal justice in addressing past crimes.220 The Timorese and Indonesian government have recently announced that they will undertake a jointly establish and participate in a Commission on Truth and Friendship that will address the 1500 deaths during Timor’s 1999 conflict. 221 Timorese leaders explain that such choice is necessary because Timor Leste is an economically weak and young nation who has Indonesia as its larger, economically advanced neighbour. In the words of a Commissioner, Timor “needs” Indonesia and that reconciliation is the way forward in healing relations with Indonesia.222 The problem is that the Reconciliation Commission’s jurisdiction “in principle” does not deal with serious crimes. Ironically such a position will let those most responsible for international crimes to avoid accountability via criminal justice and reconciliatory justice. a) Seeking to obtain the presence of high-level accused persons: considering obligations to cooperate with the Serious Crimes Panels 220 Contrast with What Happens Next?, TIME Magazine, 3 September 2001 in which Gusmao insists that amnesty for human rights violations should only be a possibility after accountability is determined via criminal trials. 221 Indonesia, E.Timor Form Commission on Rights Violations, Associated Press, 21 December 2004, available at www.etan.org 222 Interview with Father Jovito, supra note 180 0 Due to the nature of the Serious Crimes Panels as a “hybrid” tribunal rather than an international tribunal such as the International Criminal Tribunals of Former Yugoslavia and Rwanda, it is ill-equipped to counter the political will of States. Despite calls for an international tribunal similar to that set up by the UN Security Council for the trying of international crimes in Former Yugoslavia and Rwanda, the UN chose to defer to Indonesia’s wish to carry out domestic criminal prosecution. The UN Human Rights Committee Resolution passed in the wake of Timor’s 1999 conflict, recommended that the UN work hand in hand with the Indonesian government is seeking justice for international criminals.223 Such deference fails to take into consideration Indonesia’s political and legal culture.224 The Serious Crimes Panels have been unable so far to obtain the presence of high-level indicted Indonesians despite Indonesia’s signing of a Memorandum of cooperation with the Serious Crimes Panels. Wiranto was free to travel within the South East Asian region during his recent election campaign. Without the cooperation of States the Serious Crimes Panels is unable to obtain the presence of accused not within Timor itself. The Serious Crimes Panels’ constituent document limits its enforcement jurisdiction to the territory of East Timor.225 This has caused many jurists and commentators to criticize the Serious Crimes Panels and argue for an international criminal tribunal. 223 Commission on Human Rights Res, 4th Special Session, U.N. Doc. E/CN.4/RES/1999/S-4/1 of 27 September 1999 at 1 (g) & 4 which states that the international commission of inquiry should work ‘in cooperation with the Indonesian National Commission on Human Rights… to gather and compile systematically information on possible violations of human rights and acts which may constitute breaches of international humanitarian law committed in East Timor since … January 1999’ and affirmed that ‘the primary responsibility for bringing perpetrators to justice rests with national judicial systems’ 224 Report on trials before the ad hoc human rights courts in Jakarta, supra note 210 at 39-46. Cohen describes how under Suharto’s leadership, the public prosecution services was “militarized” and perceived themselves as defending the State’s interest. See also, Report of the Special Rapporteur on the Independence of Judges and Lawyers, Human Rights Committee., 59th Sess., U.N. Doc. E/CN.4/2003/65/Add.2 at 8. The Special Rapporteur describes how judges who during Suharto’s time were civil servants of the State, are finding it hard to adjust to the notion of an independent judiciary. 225 Reg 2000/15, supra note 2, s2.5 1 The difference between hybrid tribunals and international criminal tribunals set up under Security Council powers under Chapter 7 lies in the relationship of these tribunals with other States. Tribunals specifically set up under the Security Council’s Chapter 7 powers demand the cooperation of all States under the UN Charter. When setting up the International Criminal Tribunal for the Former Yugoslavia, the Security Council confirmed this by enacting Resolution 827 that called on States to “cooperate fully” with the tribunal and “take any measures necessary under their domestic law” to implement the Resolution.226 Article 22 of the said tribunal’s Statute reaffirms State obligations to comply “without undue delay” to “any request for assistance or an order issued by a Trial Chamber”.227 Timor’s Serious Crimes Panels, like the hybrid tribunals of Kosovo and Sierra Leone, was not set up directly under the Security Council’s Chapter 7 powers. The Security Council set up UNTAET and granted UNTAET’s Transitional Administrator legislative and executive powers over East Timor.228 The Transitional Administrator of Timor then set up the Serious Crimes Panels pursuant to these administrative powers. None of the Chapter 7 Security Council Resolutions relating to Timor specifically calls upon States to cooperate with the SCP. Security Council Resolutions 1264 and 1272, both issued under the Security Council’s Chapter 7 powers, demand that those responsible for international crimes committed during Timor’s 1999 conflicts to be 226 S.C. Res. 827, U.N. SCOR, 48th Sess., 3217 mtg. at 2, U.N. Doc. S/RES/827 (1993) para.4 Id 228 S.C. Res, 1272, supra note 1 at 2 227 2 brought to justice but fails to specifically call on all States to cooperate with the Serious Crimes Panels in doing so.229 While no obligation to cooperate with Timor’s Serious Crimes Panels is expressly stated in any of the Serious Crimes Panels’ constitutive documents, can such an obligation be nevertheless implied based on its nature as a tribunal set up by the UN and one charged with applying international criminal law? Hybrid tribunals have recently been recognized to function as international criminal courts despite not being set up directly under SC Chapter 7 powers230. The Serious Crimes Panels, as a hybrid tribunal set up within the UN’s framework and charged with applying international criminal law, should command the respect and cooperation of all States. b) The Serious Crimes Panels attempt to get round problems of obtaining the presence of high-level accused persons The problem with obtaining the physical presence of accused persons is an ageold problem in our international legal system plagued with weak enforcement mechanisms. The International Criminal Tribunal for the Former Yugoslavia, before 229 S.C. Res. 1264, supra note 31 ; S.C. Res. 1272 supra note 1at para 16 Prosecutor v Charles Taylor, Decision on immunity from jurisdiction, Case No.SCSL-2003-01-1, 31 May 2004, Special Court for Sierra Leone, Appeals Chamber para 37-42 holding that because the court was established by the Security Council entering into agreement with the government of Sierra Leone, despite the fact this was done not under the Security Council’s Chapter 7 powers but pursuant to Article 39 and 41, the Security Council’s actions were taken in the interest of the international community and functioned as representative of the international community. This along with the court’s constituent documents which envisioned ratione personae and ratione materiae similar to international courts such as the ICTY and the ICC, resulted in the court holding that the Sierra Leone court was by nature an international criminal court rather than a pure national court. However it should be borne in mind that this decision by the Sierra Leone court went towards determining the court’s jurisdiction over heads of States in relation to the application of diplomatic immunity to Charles Taylor who was indicted before the court. 230 3 resorting to arrests executed by force or luring, sought to get around the problem of getting the accused’s presence by using Rule 61 proceedings. A Rule 61 proceeding is undertaken when the initial arrest warrant issued by the Tribunal fails to be executed.231 This Rule states that if the Prosecutor satisfies the judge that a credible effort to serve a warrant has been undertaken, the indictment along with all previously tendered evidence, will be submitted to the trial judge in chamber. At the discretion of the Prosecutor, witnesses may be called and examined in open courtroom proceedings and if a majority of the panel finds that “there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment”, several options are available to the judges. Firstly, they can issue an international arrest warrant as opposed to the original warrant which is only operative in 231 In its current form Rule 61 states: (A) if, within a reasonable time, a warrant of arrest has not been executed, and personal service of the indictment has consequently not been effected, the Judge who confirmed the indictment shall invite the Prosecutor to report on the measures he has taken. When the Judge is satisfied that: (i) the Prosecutor has taken all reasonabl steps to effect personal service, including recourse to the appropriate authorities of the State in whose territory or under whose jurisdiction and control the person to be served resides or was last known to him to be; and (ii) the Prosecutor has otherwise tried to inform the accused of the existence of the indictment by seeking publication of newspaper advertisements pursuant to Rule 60, the Judge shall order that the indictment be submitted by the Prosecutor to his Trial Chamber (B) Upon obtaining such an order the Prosecutor shall submit the indictment to the Trial Chamber in open court, together with all the evidence that was before the Judge who initially confirmed the indictment. The Prosecutor ma also call before the Trial Chamber and examine any witness whose statement ahs been submitted to the confirming Judge (C) If the Trial Chamber is satisfied on that evidence, together with such additional evidence as the Prosecutor may tender, that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, it shall so determine. The Trial Chamber shall have the relevant parts of the indictment read out by the Prosecutor together with an account of the efforts to effect service referred to in Sub-rule (A) above (D) The Trial Chamber shall also issue an international arrest warrant in respect of the accused which shall be transmitted to all States. Upon request by the Prosecutor or proprio motu, after having heard the Prosecutor, the Trial Chamber may order a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties (E) if the Prosecutor satisfies the Trial Chamber that the failure to effect personal service was due in whols of in part to a failure or refusal of a State to cooperate with the Tribunal in accordance with Article 29 of the Statute, the Trial Chamber shall so certify. After consulting the Presiding Judges of the Chambers, the President shall notify the Security Council thereof in such manner as he thinks fit. 4 the jurisdiction where the accused is thought to reside. Secondly, if the Tribunal’s President believes that personal service has been blocked due to the relevant authorities’ unwillingness to cooperate with the Tribunal, he may notify the Security Council which is expected to act pursuant to its Chapter 7 powers to coerce the relevant recalcitrant State into observing its obligations towards the Tribunal. Rule 61 proceedings serve to counter the lack of political will on the part of States; to provide a forum for the articulation of legal norms and to preserve evidence.232 So far the International Criminal Tribunal for the Former Yugoslavia has held 5 Rule 61 proceedings, the last being the 1996 Rajic case.233 Civil society groups have argued that the Serious Crimes Panels should seriously consider using Rule 61 proceedings in cases whereby the accused’s presence cannot be secured. Such proceedings will provide a public forum for victims and increase the credibility of the prosecutor’s case which will hopefully put political pressure on Indonesia to hand over the wanted accused persons or encourage third States to enforce Red Notices circulated through Interpol.234 On 28 January 2004, after several requests for arrest warrants for various Indonesian military leaders including Wiranto, the Serious Crimes Unit submitted an 232 See Mark Thieroff & Edward A.Amley, Jr, Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61, 23 Yale J.Int’l L 231 who cites as other reasons for Rule 61 Proceedings its functioning as a truth commission and reconfirmation of indictments as a “prod” to Security Council. 233 The use of these proceedings has decreased with the use of sealed indictments which has made it easier for the ICTY to apprehend accused persons,Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/850 (2000), para. 15 234 The SCP like the ICTY, ICTR and other hybrid tribunals such as the Kosovo court and the Sierra Leone court have signed agreements with Interpol allowing these entities to request for Red Notices for indicted persons. Upon receiving such requests, Interpol will disseminate the said Red Notice to all its member States. Red Notices are recognized as international arrest warrants by many of Interpol’s member States. Further information on how Red Notices operate can be found on Interpol’s official website at www.interpol.int 5 application to the Panel requesting a public hearing for the issuance of an arrest warrant in the case of Wiranto.235 The Serious Crimes Unit’s application for a public adversarial hearing similar to the ICTY’s Rule 61 was denied by the Panel despite the Serious Crimes Unit’s argument that the Panel had a discretion to hear such applications in open court as its Transitional Rules on Criminal Procedure are silent on the exact kind of procedure to be followed in assessing requests for arrest warrants.236 However the Panel drew the prosecutor’s attention to the same Rules which foresee open court adversarial hearings of the kind requested by the Prosecutor, only at the trial stage.237 The Panel distinguished the International Criminal Tribunal for the Former Yugoslavia’s Rule 61 proceedings from the Serious Crimes Unit’s application as the former applied not in initial requests for arrest warrants but when initially requested warrants remained unexecuted and an international arrest warrants was requested instead.238 The Wiranto application was concerned with the initial issuance of an arrest warrant. While the Serious Crimes Panels stated that public policy reasons could not provide the basis for estalibshing a new procedural rule when none existed, it nonetheless took note and assessed the public policy issues raised by the Prosecutor in support of their application. The Serious Crimes Panels concluded that none of the public policy issues were sufficiently founded, focusing in particular on the fact that allowing such a procedure would result in Wiranto being singled out for different treatment from other defendants.239 235 Decision on the Motion of the Deputy General Prosecutor for a Hearing on the Application for an Arrest Warrant in the case of Wiranto, Case No. 05/2003, Dili District Court, 18 February 2004 [hereinafter Decision on Wiranto arrest warrant] 236 Id the Prosecutor argues that because the Transitional Rules on Criminal Procedure are silent on the procedure to be followed by the Panel when assessing requests for arrests warrants, the Panel has a discretion to hear such requests in hearings similar to the ICTY’s Rule 61 hearings . 237 Id at 6-8 238 Id at 9-10 239 Id at 11-14. The Prosecutor argued that such an open court hearing was needed to ensure transparency of the arrest warrant’s issuance which is particularly important in Wiranto’s case due to its political implications, to avoid misconceptions that the Panel was biased against Indonesia. The Panel however saw 6 The Panel went on to state that even if such proceedings were allowed, Rule 61 proceedings have been criticized as trials in absentia. However, a 1998 panel of experts appointed to review the working of the International Criminal Tribunal for the Former Yugoslavia noted that since Rule 61 proceedings do not result in a determination of guilt or innocence, they are not equivalent to trials in absentia.240 Even if they were, trials in absentia are not unheard of in State practice. Such trials were allowed at Nuremburg but only utilized once in the trial of Martin Bormann, Hitler’s Deputy for Nazi Party Affairs.241 Trials in absentia are commonly used by national courts as a way of trying human rights violators, especially political leaders whose physical presence may not be obtainable.242 Attempting to safeguard the rights of accused, the abovementioned 1998 panel of experts recommended that any evidence adduced by the prosecutor during Rule 61 proceedings be admitted into evidence at a later trial following the arrest or surrender of the accused and also that the accused would be entitled to counsel representation during Rule 61 proceedings.243 However such a record cannot but have a prejudicial effect on the accused in later hearings. To lessen any such prejudicial effect, jurists suggest that instead of a standard of “reasonableness”, the standard in Rule 61 proceedings should be in-chambers review as sufficiently transparent and stressed that its jurisdiction was over “natural” persons rather than States. The Panel disagreed with the Prosecutor’s argument that such a hearing would enable efficient review of evidence, concluding that the contrary would be true as it would take more time and resources. The Panel also objected to treating Wiranto differently from other indicted defendants. While the Panel noted the importance of victims interests, it observes that the Transitional Rules on Criminal Procedure allow victims to be heard only the trial stage. 240 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal of Rwanda, U.N. Doc. A/54/634 (1999), para. 57 [hereinafter Expert’s Report]; See also Thieroff who argues that trials in absentia are not prohibited by Art 14 and are practiced in various national jurisdictions. 241 Charter of the International Military Tribunal at Nuremburg, Annex to the London Agreement (8 Aug. 1945), 82 U.N.T.S. 279, Art 12; Telford Taylor, Anatomy of the Nuremburg Trials 399 (1991) at 597 242 Anne L.Quintal, Rule 61: The “Voice of the Victims” Screams out for Justice, 36 Colum. J. Transna’l L. 723 at 739 243 Id, Recommendation 4 (a) 7 raised to “clear and convincing”. 244 Rule 61 proceedings however at most remain a consolation as it does not guarantee obtaining the presence of the accused. 2. The Serious Crimes Panels attempts at addressing the militia phenomenon Most of the atrocities committed against Timorese civilians during Timor’s Indonesian occupation, while planned and orchestrated by Indonesian authorities, were carried out by militia groups. Militia groups were seen as a convenient tool of oppression as they were not overtly linked to the military and could be portrayed as spontaneous civilian initiatives beyond the control of the government or the military. Soon after the 1975 invasion, Indonesian military leaders set up armed paramilitary groups known as “village guards”. These “guards” were supposedly charged with protecting villagers from resistance fighters but were in reality used by the Indonesian authorities to suppress political dissent. 245 When Habibie announced that East Timor would be allowed to vote for her independence, there was an observable built up and multiplication of “village guards” who gradually consolidated into well-organized military-like structures. These militia groups consisted mostly of Indonesian soldiers or were from West Timor. So as to make up the required numbers, many local East Timorese were coerced into joining militia groups.246 244 Winston P.Nagan, Strengthening Humanitarian Law: Sovereignty, International Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia, 6 Duke J.Comp & Int’l L 127, 160 (1995) 245 Mark Davis, A License to Kill, 13 March 1999, Four Corners (Australian Broadcast Cooperation) 246 Id 8 Most militia members testifying before the Serious Crimes Panels upon their return to Timor Leste willingly admitted their crimes or gave partial confessions.247 The defence of duress was commonly encountered in trials before the Serious Crimes Panels. So far the Serious Crimes Panels has not acquitted any individual based on the defence of duress. Commentators have criticized the Serious Crimes Panels’ application of the defence of duress as its overly-strict application does not accurately reflect the moral guilt of militia members.248 a) Duress as applied by the Serious Crimes Panels and at international law The concept of duress has been defined substantively for the first time as a defence in the Statute of the ICC. 249 S19 of Regulation 2000/15 which codifies the law on duress to be applied by the Serious Crimes Panels mirrors the ICC’s definition of duress. To prove that an act was committed under duress, the defence has to show that firstly, commission of the act resulted from “a threat of imminent death or of continuing or imminent serious bodily harm” against the accused or another person; secondly, that 247 Interview with Essa Fassal, Prosecutor with the Serious Crimes Unit, on file with author (2 January 2004) [hereinafter known as Interview with Essa] Essa notes that most perpetrators instead of giving unqualified confessions often give partial ones. 248 See generally Suzannah Linton & Caitlin Reiger, The Evolving Jurisprudence and Practice of East Timor’s Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior Orders, Melbourne Journal of International Law, 2003 p31 249 Statute of the ICC, supra note 121, Art 31 (1) In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct… (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and responsibly to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control 9 such a threat was made by other persons and brought about by circumstances beyond the accused’s control; thirdly, that the accused’s reaction to the threat in committing the crime was necessary and responsible to avoid the said threat and lastly, that the accused did not intend to cause a greater harm that the one sought to be avoided. 250 The Serious Crimes Panels does not expressly cite specific authorities when applying Regulation 2000/15’s duress provision. However the Panels’ interpretation seems to be based on the International Criminal Tribunal of Former Yugoslavia’s jurisprudence especially the case of Erdemovic. In addition to the requirements expressly stated in s. 19, the Serious Crimes Panels have held that in order to qualify for the defence of duress the accused must not have voluntarily put himself in a situation leading up to the actual threat. There must have been no alternative to avert the threatened evil and that the act committed must be proportionate to the threat. b) The philosophy behind the defence of duress The defence of duress can be explained on retributive and utilitarian grounds. By rendering an act “involuntary” due to coercion, the agent’s act is seen as not truly his own due to his lack of free will or choice and therefore should not be held morally responsible for it. Retributive theories of duress focus on determining if the act was a conscious choice of the wrongdoer. Aristotle defined duress as when “one does what he ought not under pressure which overstrains human nature and which no one could withstand”.251 In accordance to this view threats are distinguished from offers which are not coercive in 250 251 s19, Regulation 2000/15 ARISTOTLE, Ethica Nocomochea, in THE BASIC WORKS OF ARISTOTLE (Richard McKeown ed., 1941) at 964 0 nature. Threats are also required to be external factors over which the agent has no control over.252 Voluntariness is thus emphasized as a determinant of the acting agent’s moral blameworthiness. This results in the need for the law to formulate clear conditions under which an act would be considered involuntary. Section 19’s duress definition which stresses on the “immediacy” of the threat, that the threat be external and that the accused must have not brought about the threat itself are conditions which go towards establishing the “voluntariness” of the accused and based on classic retributive theories of duress. This focus on voluntariness has been criticized by jurists because acts considered under this defence are in reality always voluntary in the ordinary sense of the word. Any act which engages the autonomous exertion of will is in reality voluntary. Non-classical retributive theories of duress do not stress voluntariness but simply state that an act is done under duress when no person should have to resist a similar threat. 253 This depends on society’s perception of when is it deemed “morally” permissible to cave in to such threats and will not only differ from society to society but between groups within societies. This alternative retributive theory results in much uncertainty. This is the retributive approach that seems to have been adopted by the Serious Crimes Panels. Duress has also been justified by utilitarians. A utilitarian conception of duress would in turn deny punishment if due to an external threat or circumstances, the threat of punishment would not have deterred the actor, others or where some other beneficial 252 See generally, ROBERT NOZICK, Coercion, in PHILOSOPHY, SCIENCE AND METHOD (Ernest Nagel ed. 1972) Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits, 62 S. CAL. L. REV. 1331 at 1365 253 1 consequence in terms of crime prevention comes at too great a price or simply cannot be achieved at all.254 Jurists argue that both retributivist and utilitarian theories of duress require cases to be assessed on a case by case basis rather than application of legal guidelines which seek to determine the “voluntariness” of the act.255 c) Examining the Serious Crimes Panels’ application of duress in line with retributive principles Much of the criticism of the Serious Crimes Panels’ application of the duress requirements centres not on its legal interpretation but on its analysis on individual case facts when deciding if the accused acted voluntarily. For example, the Serious Crimes Panels has held in several cases that if the individual could have left his village, family and “escape(ed) to the hills”, then his joining of the militia cannot have been said to be involuntary as there had been an alternative to his joining of the militia.256 The Serious Crimes Panels has not engaged in any case-by-case assessment of whether any alternative including leaving one’s family and escaping into the hills are real alternatives. Some jurists have criticized the Serious Crimes Panels for basing its decisions on a categorization of “good” individuals who ran into the hills and those who did not and are 254 John Lawrence Hill, A Utilitarian Theory of Duress, 8 Iowa L.Rev. 275 at 314 Hill, supra n254 at 333 256 Prosecutor v. Yoseph Leki, p8 in which the SCP held that he should have followed other threatened villagers and fled to the hills despite the accused’s protests that he could not do so as he had children and elderly relatives to support; The Prosecutor v Mateus Tilman , case No. 8/2000, Judgment, 14 June 2001 in which the court held that the accused could have left the militia in the few months preceding the attack; The Prosecutor v Jose Valente case No 3/2001, Decision, 19 June 2001 in which the court held he did not need to go along with the militia when they had attacked independence supporters 255 2 therefore not eligible for the defence of duress.257 Should not the feasibility of leaving one’s family and escaping to the hills be considered on a case-by-case basis? Aside from the requirement of “voluntariness”, Section 19 of Regulation 2000/15’s stress on the “immediacy” of threats does not accurately reflect the realities of the coercive methods employed by the militia. Rutkowski argues that the realities of gang activity require a reformulation of the classic formulation of duress especially with regards to determining the initial decision of joining such gangs is voluntary. Methods of intimidation employed to coerce gang members into joining such groups may not be literally immediate but are also no less coercive in nature.258 He argues that a broader allowance of duress as a defence would not mean that all gang crimes go unpunished but would focus on punishing the individual directing the crime rather than the coerced individual.259 The problem then arises, as in the case of Timor, if there are other obstacles in the way of bringing the directors and planners of the crime to justice. The Serious Crimes Panels’ strict application of duress effectively closes off the availability of duress as a complete defence to most defendants. Its approach towards duress does not at first glance seem to be retributive due to its insufficient consideration of the coercive circumstances faced by each individual accused that renders his actions not truly “voluntary”. However the Panels, by setting a moral standard expected of accused persons, even if such a standard is perceived as unrealistic, can be considered to be taking a retributive approach as it assesses the moral blameworthiness of accused 257 Linton & Reiger, supra note 248 at 31 David S.Rutkowski, A Coercion Defense for the Street Gang Criminal-Plugging the Moral Gap in Existing Law, 10 ND J.L. Ethics & Pub Pol’y 137 at 165-173 259 Rutkowski, supra n258 at 181 258 3 persons’ against what is expected of him by Timorese society. In doing so it may be argued that the Serious Crimes Panels is taking upon itself on a norm-setting role similar to that undertaken by the majority in the Erdemovic case. In that case the tribunal held that the reason why duress can never be a total defence to the special protective role of international humanitarian law.260 “Our rejection of duress as a defence to the killing of innocent human beings does not depend upon what the reasonable person is expected to do. We would assert an absolute moral postulate which is clear and unmistakable for the implementation of international humanitarian law.” Similarly the Serious Crimes Panels’ approach can be understood as being a moral judgment on the actions of militia members rather than being based purely on whether their actions were “voluntary” in nature. B. Timor Leste’s Reconciliation Commission: achieving the goals of Reconciliatory Justice The overall objective of reconciliation hearings as stated in Regulation 2001/10 is to “assist the reception and reintegration of persons into their communities”.261 In Pigou’s field study, most Timorese interviewed see reconciliation as the resolution of conflict between the victim and perpetrator and the reintegration of perpetrators back into their communities.262 In the words of a Timorese teacher interviewed by Pigou, “Reconciliation means forgiving each other, admitting one’s mistakes and solving past conflicts…”.263 Reconciliation in the eyes of Timorese is anticipates the healing of a three-way 260 Prosecutor v Erdemovic, Case No IT-96-22-A, Sentencing Judgment, 29 November 1996, Joint and Separate Opinion of Judge MacDonald and Judge Vohrah, para 84 261 Reg. 2001-10, supra note 3 at s.3.1(h) 262 Crying Without Tears Report, supra note 200 at 29-30 263 Id at 30 4 relationship: the wrongdoer, the victim and the community. While the specific question of the Serious Crimes Panels and Reconciliation Commission’s respective subject matter jurisdictions will be further considered below, it should be noted here in attempting to define reconciliation from the Timorese perspective that most Timorese are of the view that reconciliation can only occur after “justice” has been carried out. With regards to 1999’s atrocities, such “justice” is usually perceived to only occur after the perpetrators is criminally tried. The Reconciliation Commission, by limiting its subject matter jurisdiction to “serious” crimes has been generally in line with Timorese concepts of justice. This section will outline how the Reconciliation Commission has sought to achieve reconciliation between perpetrators and victims as well as between perpetrators and the community. 1. The Reconciliation Commission’s reconciliation of wrongdoers and victims Most Reconciliation Commission staff are of the opinion that the success of reconciliation hearings largely depend on the wrongdoer’s confession and repentance which is normally followed with the victim’s forgiveness. However, nowhere in the Reconciliation Commission’s Regulation is any mention made of apologies and forgiveness. Nevertheless 98% of reconciliation hearings conclude with the exchanges of apology and forgiveness between the victims and the perpetrators. 264 How important is the role of forgiveness in facilitating reconciliation between the accused and the victim? This largely depends on how one defines forgiveness. Bishop 264 Interview with Father Juvito, supra note 180 5 Tutu of the South African Truth and Reconciliation Commission defines forgiveness as a mere “waiving one’s right to revenge”.265 Forgiveness defined along these lines does not guarantee or lead to reconciliation. A victim while choosing to forgive or waive his legal rights may still choose not to have anything to do with the perpetrator. Bishop Butler offers a different definition of forgiveness which sees it as involving a change of heart and inner feeling, the overcoming of resentment, anger and hatred.266 Forgiveness in this sense would involve reconciliation with the wrongdoer. A closer examination of what the process of forgiving entails gives us a clearer picture of how forgiveness facilitates reconciliation. Before forgiveness can be given, it has to be asked for. The core ingredients of an apology are (1) an acknowledgment that an injurious act occurred and was wrong, (2) an acknowledgment of fault, (3) willingness to compensate the injured party, (4) a promise that the injurious act will not happen again, and (5) the intention to work for good relations in the future.267 In doing so the apologizer acknowledges that there was no excuse or justification for his actions and places himself or herself in a morally inferior position. The victim is placed in a morally superior position from which he or she can choose to forgive or not forgive the wrongdoer. 268 The process of asking for forgiveness reverses the power balance between the wrongdoer and victim vis-à-vis one another. The wrongdoer’s position of power over the victim, assumed when he caused harm to the victim, is now reversed as the wrongdoer asks forgiveness of the victim. By removing the power imbalance caused by the wrong, the 265 Interview by Bill Moyers with Bishop Desmond Tutu, PBS (Apr. 27, 1999) Sermon IX, in SERMONS OF JOSEPH BUTLER 127-41 (W.E.Gladstone ed., 1987) 267 Hiroshi Wagatsuma & Authur Rosett, 20 Law & Society Rev. 461, 469-70 (1986) 268 Id, at 475 266 6 process of asking for and giving forgiveness allows the victim and wrongdoer to meet each other on equal grounds, enabling reconciliation. Because the entire process of apologizing and forgiving involve moral decisions on the part of the wrongdoer and the victim, apology and forgiveness should not be imposed on individuals as this would result in forcing individuals into taking moral positions which they may not desire nor believe in. The wrongdoer is pressured into lying while the victim is forced to suppress his true feelings. In doing so, instead of encouraging moral growth, the wrongdoer and victim are made morally worst of than they were before. The reconciliatory process aims to an atmosphere that encourages but does not coerce forgiveness. The Reconciliation Commission’s staff are careful to ensure that, while facilitating and encouraging forgiveness, any apology or forgiveness given is not manufactured or forced. One Commissioner notes that perpetrators are wary of lying during reconciliation hearings as the audience does not hesitate to publicly reproach perpetrators for any statement interpreted as insincere. In pre-hearing sessions, the Reconciliation Commission’s staff explain to applicants that the best way to have a successful hearing is to tell the truth and not shy away from it by trading accusations.269 The attitude of the perpetrator is vital to the success of reconciliation hearings. Only if the perpetrator is perceived by the victims and audience to be humble and confess genuinely to his wrongdoings, do reconciliation hearings go well. On the other hand forgiveness is 269 Interview with Anaceto, supra note 161, Interview with Larkin, supra note 169 7 almost always very willingly given by victims when perpetrators are perceived to be sincere and repentant.270 a) The influence of Catholicism in facilitating repentance and forgiveness The important role played by confessions and forgiveness in Timor’s reconciliation hearings can be explained by the predominant influence of Catholicism in Timorese society, 95% who are Catholics. Most reconciliation hearings open with a short speech from the village’s Catholic priest who talks about the importance of repentance and forgiveness in the Catholic religion.271 The Catholic Church has always taken a conciliatory rather than partisan role in Timor’s political history, a stance which has at times frustrated local independence leaders.272 When convening reconciliatory talks between all parties, Bishop Belo suggesting to all sides: “let’s all lay down our arms and have dialogue with bare hands, using our brains and our hearts, Treating each other as equals. Not with the attitude “You’re wrong and I’m right””. 273 270 Interview with Father Jovito, supra note 180 Father Juvito tells a story emphasizing the power of repentance and forgiveness in which in Manatutu a former militia voluntarily returned from West Timor. “When he arrived, a group of youth came with knives and weapons, wanting to punish him. When he saw them he immediately said “Please give me some time to say something, Yes I was here as a militia men. I burnt houses. I threatened people but I didn’t kill anyone. Now I am here to accept all responsibility. I burnt everything, you lost everything. Here is everything I have, if you want to burn it please” After that the youth calmed down, approached him and hugged him. After that the youth protected the man from anyone else.” 271 The introduction of Catholicism into Timorese society by Portuguese missionaries was easy due to the parallels between local traditions and Catholic theology. One such parallel as observed by Bishop Belo, is the local animist worship of sacred objects known as luliks. For the new Timorese convert the use of icons in Catholic worship of religious icons did not prove as foreign The spread of Catholicism was facilitated by Timorese society’s intricate clan and kinship links. The baptism of each village head or liurai would be followed by the baptism of the entire community. Because Portuguese was a necessary requirement for civil employment and it was only taught in Catholic schools, many Timorese were converted while schooled. After the Indonesian invasion, Indonesia’s insistence on each individual’s official subscription to one of the five religions recognized by the Indonesian government which included Catholicism, hastened more conversions to the one religion which the majority of Timorese were familiar with. See generally ARNOLD KOHEN, FROM THE PLACE OF THE DEAD : THE EPIC STRUGGLES OF BISHOP BELO OF EAST TIMOR (St. Martin’s Press, 1999) 272 ARNOLD KOHEN, FROM THE PLACE OF THE DEAD : THE EPIC STRUGGLES OF BISHOP BELO OF EAST TIMOR (St. Martin’s Press, 1999) 273 Id at 211 8 The Catholic religion declares God’s infinite grace and that there is no sin that cannot be forgiven by God.274 The Catholic Catechism states that “There is no offense, however serious, that the Church cannot forgive. There is no one, however wicked and guilty, who may not confidently hope for forgiveness, provided his repentance is honest. Christ who died for all men desires that in his Church the gates of forgiveness should always be open to anyone who turns away from sin.”275 The Catholic religion also emphasizes how all of mankind is fallible and how in order to receive God’s grace and forgiveness, so too does one have to forgive those around him. The Lord’s Prayer in the Book of Matthew calls on God to “forgive us our debts, as we also have forgiven our debtors".276 It goes on to clearly state that “If you forgive those who sin against you, your heavenly Father will forgive you. But if you refuse to forgive others, your Father will not forgive your sins”277 This breaks down the tendency to “otherize” the accused and enables victims and the community at large to see the wrongdoer ultimately as the child of God. A Commissioner founder explains how the reconciliation process is inspired by the Biblical story of the prodigal son, who upon repenting of his extravagant ways is unconditionally forgiven by his father and welcomed home. However the Bible also states that God’s forgiveness is only granted upon the wrongdoer’s confession and repentance. The Book of John states "If we confess our sins, he is faithful and just, and will forgive our sins and cleanse us from all unrighteousness".278 The Book of James also calls on believers to “confess your sins to each other..”279 This explains why repentance and confession is deemed by many victims as essential before forgiveness can be given. 274 Ninth Annual Stein Center Symposium: The Role of Forgiveness in the Law, Jan 28, 2000, proceedings reproduced in 2000 Fordham University School of Law at 1364 275 Catechism of the Catholic Church, para 982 276 Matt 6:12, Holy Bible 277 Matt 6:14-15, Holy Bible 278 1 John 1:9, Holy Bible 279 James 5:16 9 By drawing on a shared Catholic tradition between participants in reconciliation hearings, parties are provided with a common ground to seek resolution to their dispute.280 Cultural familiarity with religious concepts further enhances participants’ commitment to the reconciliatory process. For example, the reparations required and imposed on the wrongdoer by the Reconciliation Commission has its parallel in the Catholic tradition of paying penance after confessions made by a wrongdoer.281 2. The Reconciliation Commission’s reintegration of wrongdoers into communities One of the main aims of Timor’s reconciliatory justice is to facilitate the reintegration of offenders into society. Even before the Reconciliation Commission was set up, Timorese political leaders travelled to West Timor border to encourage East Timorese refugees to return to their homes. Local Timorese NGO’s held reconciliation hearings in villages to facilitate the return of refugees, including those suspected of militia crimes. These hearings were seen as necessary to ensure the acceptance of refugees by their communities. Timor’s close-knit communities could in effect serve as “prisons” for ostracized refugees. 280 F.Matthews-Giba, Religious Dimensions of Mediation, 27 Fordham Urb. L.J. June 2000, 1695 at 1704 where it is recognized that aside from religious shared values, other commonly shared values in a community can be used eg fair play, equity or unjust enrichment concepts 281 Interview with Father Domingos Soares, on file with author (5 January 2004) Father Domingos is a Catholic priest based in Alieu. He played a prominent role in Timor Leste’s struggle for independence by actively speaking up against the Indonesian occupation and defending resistence fighters in his role as Catholic priest. He is widely respected by former resistance leaders such as Foreign Minister Ramos Horta. Pre-independence, Father Domingos was hunted by militia seeking to punish him for his support of Timorese resistance fighters and was forced to flee Timor. He returned to his beloved country as soon as the UN secured some measure of stability in the nation 00 Given the intimate nature of community life in Timor, any reconciliation or reintegration of the offender into the community itself would have to include the community’s participation. The community’s exact role and participation in reconciliatory justice programmes has differed in State practice. In New Zealand’s family group conferencing programs, the community’s main role is seen as providing the victim and offender with “support systems”.282 In Canadian sentencing circle practices the community is seen as a stakeholder whose input is necessary towards the resolution of the conflict itself. In sentencing circles, “police officers, judges, lawyers, victims, offenders and community residents” participate in seeking a deliberated solution focuses on shared communal responsibility in the resolution of conflicts.283 The importance of communal participation in reconciliatory justice contrasts with Western criminal justice that deliberately seeks to neutralize and objectivize justice by taking it out of the hands of those involved and delegating it to the State. Those directly involved are deemed less objective and too emotionally involved. On the other hand, reconciliatory justice takes the position that only with open discussion and participation will all emotions be aired and the dispute truly resolved. Braithewaite argues that the supporters of formal criminal justice put too much faith in professionals in addressing the problem of crime in a community.284 He argues that “crime is best controlled when members of the community are the primary controllers through active participation in shaming offenders and having shamed them through concerted participation in ways of 282 Robert Weisberg, The Practice of Restorative Justice: Restorative Justice and the Danger of “Community”, 2003 Utah L.Rev. 343 at 353-354 283 Id at 355-356 284 JOHN BRAITHWAITE, CRIME, SHAME AND REINTEGRATION (Cambridge University Press: Cambridge, 1989) at 115 01 reintegrating the offender back into the community of law abiding citizens.” This “shaming” process works in the manner by which community members express their disapproval which the wrongdoer is then free to respond to or ignore.285 Some commentators argue that such informal community involvement in crime control risks putting the offender at the mercy of mob justice. 286 The Reconciliation Commission in designing programs of reconciliation has borne in mind the need to involve Timorese communities in line with Timorese traditions of dispute resolution.287 While Timorese culture has absorbed influences of Catholicism and accommodated a limited recognition of the formal legal system, Timorese traditions of dispute resolution have remained remarkably intact and resistant throughout Portuguese colonization and Indonesia’s occupation. Traditionally when a dispute arises in Timorese villages, the village’s council of elders is consulted by the offender and victim who are in turn accompanied by their respective clans. In fact Timorese dispute resolution proceeds in levels. If a particular problem cannot be solved at the most direct communal level only then will it be referred to a larger and in a sense more distant level.288 For example, if it cannot be resolved at a household level, it is then referred to the neighbourhood level and then the village level.289 The Timorese concept of reconciliation has been locally termed nahe biti which 285 Id, at 58 Among examples cited include frowns, comments, indirect confrontation by gossip, official pronouncements by judges 286 See Katie Long, Community Input at Sentencing: Victim’s Right or Victim’s Revenge, 75 B.U.L. Rev. 187 at p228 who argues that though such dangers exist, they can be mitigated by embracing a restorative or reconciliatory justice paradigm. 287 E. GOLDSMITH, THE WAY: AN ECOLOGICAL WORLD VIEW (London: Rider, 1992) from the Greek kthonoc, or earth. 288 Reconciling Justice Report, supra note at 201 289 Pigou Report for UNDP Timor-Leste supra note at 160 p26 02 literally means the stretching out of the mat “embracing …the notion of meeting, discussion and agreement in order to reach a consensus among the opposing factions”.290 a) The dangers of communal pressure on victims Critics of communal justice argue that overemphasis on the offender’s reintegration into communities along with communities’ active participation may sideline the victims and exert inappropriate pressure on victims to forgive so as to facilitate the offender’s reintegration. 291 However, local Timorese leaders insist that there is no risk that victims will be sidelined as unlike other truth and reconciliation commissions, amnesty or forgiveness in Timor’s Reconciliation Commission emanates from the victim rather than the Commission.292 Though this is in practice so as demonstrated during reconciliation hearings, the Reconciliation Commission’s Regulation states that the reconciliation agreement is to be drawn up by the Reconciliation Panel and then submitted individually to the victim and perpetrator for their respective agreements293 It also should be borne in mind that in Timorese society, the individual does not perceive his or her interests as separate from the larger group, clan or community of which he or she is part. Traditionally the family of the wrongdoer would continue to remain accountable to the victim as well as the family of the victim in the event the wrongdoer failed to fulfil his responsibilities towards the victim.294 In their tightly knit 290 “Law and Justice in East Timor-A Survey of Citizen Awareness and Attitudes Regarding Law and Justice in East Timor”-Executive Summary, February 2004, Asia Foundation 291 Gordon Bazemore & Mark Umbreit, A Comparison of Four Restorative Conferencing Models, Juv. Just. Bull., Feb. 2001 at 11 292 Interview with Father Jovito, supra note 180 293 Id 294 David Mearns, Looking Both Ways: Models of Justice for East Timor, Australian Legal Resources International, November 2002, at 43 03 communities, Timorese have a strong sense of social belonging and responsibility. Many victims said that they had unconditionally forgiven wrongdoers were due to the community’s need to move beyond the 1999 atrocities.295 Nevertheless, a valid concern raised by human rights activists and local Timorese civil groups is the fact that Timorese indigenous dispute resolution mechanisms tend to be discriminatory against certain groups such as women.296 There have been cases whereby rape victims have been pressured by their families to withdraw formal charges or acquiesce to compensation packages to which they might not have otherwise agreed.297 295 Interview with Father Jovito, supra note 180; Interview with Larkin, supra note 169; Interview with Anaceto, supra note 161 296 Mearns, supra note 294 at54-55, who points out that such cultural attitudes are similarly held by the women themselves and only education and empowerment will be able to change cultural attitudes to meet modern international standards 297 East Timor: Justice past, present and future, ASA 57/001/2001, 27 July 2001 available at http://www.amnesty.org, section 7 04 VII.THE TIMORESE RESPONSE TO A DUAL-TRACK POST-CONFLICT JUSTICE SYSTEM The Serious Crimes Panels has largely failed to fulfil the retributive aims of criminal justice. Despite the dedication of its local and international personnel, the Panels’ lack of effective enforcement mechanisms coupled with reluctance on the part of States to enforce the Panels’ arrest warrants, has resulted in the Panels’ failure to convict those most responsible for atrocities committed in Timor. The Reconciliation Commission’s relative success in encouraging individual, victim and communal reconciliation is largely due its responsiveness to indigenous needs and traditions. However, any examination of Timor Leste’s post-conflict justice system remains incomplete without a holistic assessment of the interaction between the Serious Crimes Panel and the Reconciliation Commission. Both these institutions simultaneously address crimes committed during Indonesia’s colonization of Timor, creating a two-track system of justice. The next section examines the close and yet separate parallel interaction of criminal and reconciliatory justice as implemented by these institutions. A. Understanding the Timorese perception of Justice The Timorese have responded in a variety of ways to their country’s two-track post-conflict justice system. Some consider criminal justice as more legitimate as compared to reconciliatory justice and criticize the Timorese Government’s emphasis on 05 reconciliatory justice.298 Some argue that true peace and reconciliation will only be possible after perpetrators are brought before the court and held accountable through criminal justice.299 On the other hand, some consider reconciliation and forgiveness as necessary for securing lasting peace. These see the dual nature of Timor’s post-conflict justice system as all-embracing and holistic, in which reconciliatory justice and criminal justice play different but complimentary roles. That, only with truth, will there be justice and vice versa.300 Nevertheless, despite the existence of these various views, there exists general acceptance and support among the Timorese for both the Serious Crimes Panels and the Reconciliation Commission. 1. Timor’s historical and political legacy For most persons familiar with Western-style justice systems, the simultaneous existence of two very different kinds of justice systems, based on different philosophies and applying different procedures and sentences, is hard to fathom. This section seeks to explain the Timorese population’s general acceptance of Timor’s two-track post-conflict justice system, despite the variety of views held among ordinary Timorese on the interaction between criminal justice and reconciliatory justice as set out earlier. Before the arrival of the Portuguese, Timorese indigenous society had already developed traditions of dispute settlement. Despite attempts by their Portuguese and Indonesian colonizers to implement formal Western-style justice systems in Timor, indigenous customs and traditions, including those relating to dispute resolution, 298 Interview with Amado, supra note 205; Interview with Father Jovito, supra note 180 Crying Without Tears Report, supra note 200 at 29-32 300 Interview with Anaceto, supra note 161 299 06 continued to be maintained by Timorese communities especially by the majority who lived in rural areas. Nevertheless, Timorese culture was undeniably influenced by external factors introduced by colonization.301 The forced imposition of formal Westernstyle legal systems by colonization coupled with the persistence of indigenous dispute settlement mechanisms eventually resulted in the development of a perceived dichotomy between formal forms of justice and indigenous forms of justice among ordinary Timorese. This dichotomy between formal criminal justice and indigenous justice first developed when the Portuguese established formal Western-style justice systems in Timor. The Portuguese, like most colonizing powers, deemed the indigenous society of the colonized territory as inferior by nature and sought to establish in these territories administrative and governance systems deemed more “civilized” in nature, including Western-style justice systems. Local indigenous dispute resolution mechanisms were deemed sufficient for non-serious crimes especially those involving only Timorese. However more serious crimes such as murder, which came to the attention of the Portuguese were required to be heard in formal courts set up by the Portuguese.302 Because local Timorese were only permitted into the civil service or more lucrative Portuguese-controlled enterprise if they were deemed sufficiently assimilated in 301 Glenn insists that culture and traditions are never water-tight or constant, describing their transmission from generation to generation as fluid processes of “selection”, “capture” and “transmission” of particular pieces of “information” “from the past to the present, in a particular social context” PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN LAW, at 12-14 302 Before the Portuguese established the formal justice system, murder cases were treated within the local dispute resolution framework which subscribed to the Timorese culture’s viewing of murder as another one of the acts which disrupts social order and needs to be “compensated” so as to restore the social order. In murder cases the murderer in some cases would have to replace the person he had killed. He would have to move into the family’s home and work for them. Reconciling Justice Report, supra note 201 at 9 07 Portuguese culture, local Timorese were forced to adopt and learn the ways of their colonizers. The continuing existence of Timorese indigenous dispute resolution mechanisms alongside formal justice systems set up by colonizing powers were largely a result of Timorese' resistance towards their colonialists. This was especially so during Indonesia’s occupation during which the formal courts were staffed by Indonesians and were perceived as hostile and corrupt by ordinary Timorese. Also during the Indonesian occupation, Falintil, the Timorese resistance movement, encouraged villages to maintain indigenous structures so as to facilitate contact and cooperation between the villagers and resistance members as part of Falintil’s strategy against the Indonesians. Postindependence, Timorese society’s preference and trust in local dispute resolution mechanisms was demonstrated as communities and villages supported and participated in initiatives using local dispute resolution methods to facilitate the return of refugees.303 2. Examining the dual-track culture of justice in Timorese society 303 Soares, Dionisio da C.Babo, Nahe Biti: The Philosophy and Process of Grassroots Reconciliation (and Justice) in East Timor, 2002, p33 08 As laid out earlier, Timorese society’s notion of a dual-track justice system results from a particular socio-politico history in which the formal criminal justice system is perceived as being reserved for serious crimes. With regards to post-conflict justice most Timorese agree that reconciliatory justice should be reserved for less serious crimes.304 The fact that a crime has been labelled as “international” in nature further underscores their place on the Timorese perceived hierarchy of wrongdoing and that its proper place should be within the formal legal system.305 This view is particularly pronounced among younger Timorese who have been exposed to Western culture either through the formal education system or the mass media in which criminal justice is the paradigm form of justice.306 Therefore the Government’s emphasis on reconciliatory justice and the sidelining of the Serious Crimes Panels has been interpreted by many Timorese as unfair and contradictory. 307 During reconciliation hearings carried out by local non-governmental organizations aimed at facilitating the return of perpetrators to their villagers, some of whom had committed serious crimes such as murder, it was repeatedly stressed by participants and victims of these hearings that 304 See Crying Without Tears Report, supra note 200 at 31 “if the case is about livestock entering my garden, eating my plants and destroying my garden, I think I can forgive the owner of the livestock. However talking about the offenses surrounding the 1999 referendum, some people may agree with reconciliation but some people may disagree because their relatives have been killed or raped. I think government cannot force the people to reconcile” (Male villager, 41 years old, Umatolu, Viqueque) “I guess reconciliation works only with minor problems like hitting, insulting, etc but it cant solve major crimes like murder-that’s the job of the law (Women’s ground member, 30 years old, Liquica) [what pages are the quotes from?] 305 Interview with Father Jovito, supra note 180. Father Jovito states that serious crimes are beyond the competence of the CAVR and that “international crimes” should be within the jurisdiction of SCP 306 Interview with Sylvia and Nella, both law students at Dili University, on file with authory (2 January 2004) [hereinafter interview with students] Both were present in Timor throughout the 1999 conflict. Together with their families and many other Timorese, they hid from militia attacks in Timor’s mountainous interior. Nella remembers watching militia members burn her house as she and her family were forced to flee. Nella in fact says that while she and her peers understand why less serious crimes are to be dealt with by reconciliatory justice observes that personally she would prefer all wrongdoings to go through the formal criminal justice system. This perhaps demonstrates a shift in Timorese thinking between the urbanized youth educated in Western style universities 307 Interview with Amado, supra note 205 09 though these perpetrators would be accepted back into the villages, they would eventually have to face justice through the formal legal system.308 Victims of serious crimes who have spoken at the Reconciliation Commission’s victim hearings often conclude their statements by demanding the prosecution of the perpetrators by the Serious Crimes Panels.309 It can be foreseen that such misgivings will increase in the future with the Reconciliation Commission’s mandate’s amendment from strictly excluding serious crimes from its jurisdiction to requiring the Commission “in principle” not to deal with serious crimes. Already the Reconciliation Commission has held its first reconciliation hearing dealing with murder. 310 3. Lessons from Timor: rethinking the boundaries of criminal punishment Despite the initial unfamiliarity of Timor’s two-track post-conflict justice system to those of us brought up in Western-style legal systems, there are some lessons to be learnt from the Timorese model. Braithewaite, a leading scholar of reconciliatory or restorative justice has argued that the legal categorization which predetermines the kind of approach or sentence, whether reconciliatory or criminal, underlying our modern day legal system fails to recognize and address the root cause of disputes and injustice. Braithewaite has proposed an alternative model of justice in which he argues that there is a place for both restorative justice and traditional criminal justice in our everyday legal system.311 Instead of organizing the law’s response in terms of categorization of cases, Braithewaite proposes taking an integrated “whole of law” approach to determine if 308 Id Interview with Larkin, supra note 169 310 McCall, supra note 191 311 John Braithwaite, Restorative and Responsive Justice for the Whole of Law, Presentation to the Quinnipiac-Yale Dispute Resolution Worship, New Haven 29 April, 2002 309 10 restorative or criminal justice should be adopted in resolving any dispute regardless of whether they fall into our preconceived categories of crime, tort or labour or competition law. Braithewaite argues that the main issue at hand is to resolve disputes in which people involved perceive some sort of injustice sufficiently enough for them to seek third party involvement. Because most disputes are relational, reconciliatory or restorative justice should be the first resort while deterrence and incapacitation cases would be dealt with by criminal justice. While admitting that his approach seems a “wildly utopian perspective” due to the fact that most societies do not guarantee restorative justice as a first right nor provide legal aid funds to guarantee the right to criminal justice. Does Timorese society’s experience in post-conflict justice provide proof to support Braithewaite’s theory and rethinking of our modern day legal systems? This requires society to perceive all wrongdoings not within preconceived categories but on a case by case basis. However as mentioned above, Timorese are generally unwilling to have serious crimes dealt with through reconciliatory justice due to their particular political history which has cultivated a serious versus non-serious crimes distinction in Timorese culture. Braithewaite’s theory requires the breaking down of such a distinction. Nevertheless there have been instances demonstrating a willingness on the part of Timorese society to eschew such categorization and adopt instead a case by case approach not unlike the one proposed by Braithewaite. One example has been the willingness of Timorese to receive and forgive perpetrators of serious crimes in earlier reconciliatory ceremonies carried out by local non-governmental organizations or local leaders independent of the Reconciliation Commission.312 This willingness to go beyond cultural 312 Reconciling Justice Report, supra note 201 at 35 11 barriers can be explained by the collective trauma suffered and experienced by Timorese society coupled with a desire to move forward into the future as a nation. In these reconciliatory hearings, victims were willing to reconcile rather than punish militia members as these militia members were viewed as blameless and coerced into joining the militia by the Indonesian army. Such willingness to consider wrongdoings on a case by case basis was similarly reflected when local political leaders and traditional leaders argued that the UN should have allowed local communities a say in which crimes were to be deemed as “serious”.313 313 Id, at 56 12 VIII.OWNERSHIP OF POST-CONFLICT JUSTICE: WHO DECIDES? Timor Leste’s present two-track post-conflict justice system was not originally envisaged by either the UN or Timor’s political leaders. The UN from the very beginning of Timor’s 1999 conflict recognized in various Security Council and General Assembly Resolutions that perpetrators of international crimes would be brought to justice, commonly understood to mean criminal justice. While Timor’s resistance leaders had also issued similar calls for criminal justice prior to Timor’s independence, their stance changed when Timor’s gained its independence. Post-independence, many of Timor’s political leaders including resistance leader and now President, Xanana Gusmao became ardent advocates for reconciliation rather than formal criminal justice with regards to crimes committed in 1999. This has been in line with the Timorese government’s criticism and neglect of the Serious Crimes Panels.314 Commentators have condemned this stance as politically motivated and contrary to international standards.315 While reconciliation is commonly packaged by local Timorese leaders as indigenous in nature, in reality it represents a departure from Timorese legal culture that has since colonisation envisaged a role for both reconciliatory justice and criminal justice. That being said, departure from existing legal culture as it stands during ordinary times has been recorded time and again in history. In Treital’s seminal study on 314 315 Not many choices left for Wiranto, The Jakarta Post, 7 March 2003, available at www.etan.org TREITAL, supra note 40 at 213-228 13 transitional justice, she points out how extraordinary legal measures are used by postconflict societies as transformative tools. Treital argues that transitional justice in times of political transition is both forward-looking and backward-looking, determined by political histories and also transcending it by breaking ties with the past and forging a new political identity.316 Post-conflict justice cannot be judged based on ideals established in non-transitional times which are grounded in rule of law’s certainty and stability. The rule of law’s role in transitional times aims to facilitate change rather than secure stability and certainty. Therefore such departure from ordinary rule of law is not new in history. Furthermore as stated above, there exists no clear international obligation to criminally prosecute international crimes. Despite all this, the UN remained adamant in establishing a formal criminal justice system to try international crimes committed during the 1999 conflict. The following section seeks to examine why the UN required “serious” international crimes to be dealt with via the criminal justice rather than reconciliatory justice. This is despite the fact that no international obligation to criminally prosecute these crimes exists at international law and that the Serious Crimes Panel has not been particularly successful at achieving retributive justice. A. Addressing popular misconceptions of non-Western dispute resolution mechanisms There is a tendency to view indigenous alternative dispute resolution mechanisms which do not adhere strictly to notions of Western legal notions as less legitimate.317 This fails to recognize that law is very much a reflection of a particular society’s values, 316 317 Id Van Ness, supra note 138 at 2 14 history and political circumstances. Legal methods can only be properly understood and appreciated within their particular legal cultures. These differences can be explained to be due to the different culture of indigenous Timorese. Law is a way in which communities map out their identities and boundaries.318 It serves not only to preserve values necessary for particular societies’ survival but also the perpetuation of these values by reflecting the values shared among the societies’ members and emphasizing their sense of belonging. The effectiveness of dispute resolution mechanisms should be analyzed and evaluated within the tradition itself including whether it is able to deal with crimes of a certain magnitude effectively. 1. Perceived informality in non-Western dispute resolution systems: the imposition of Western notions of formality Indigenous dispute resolution mechanisms have been described as informal and less developed in comparison to Western formal legal systems. The procedure of indigenous dispute resolution mechanisms have been labelled as informal and unable to sufficiently protect the rights of individual victims or accused.319 What is labelled as informal is in reality so labelled because it does not conform to Western notions of formality.320 Chthonic forms of alternative dispute resolution which are more discretionary, consensus-based and communal are seen as ineffective in addressing crimes of a serious nature. Timor’s Portuguese and Indonesian colonizers adopted a similar attitude in promoting formal Western-style legal systems as ideal mechanisms of 318 Richard C.Boldt, Criminal Law: Restitution, Criminal Law and the Ideology of Individuality, 77 J.Crim. L. & Criminology 969 at 991 319 Van Ness, supra note 138 at 2 320 Dermot Feenan, Re-introducing Informal Criminal Justice in INFORMAL CRIMINAL JUSTICE (Dermot Feenan ed., Ashgate: Dartmouth, 2002) at 16-18 15 dispute resolution. Firstly this overlooks the fact that even Western notions of criminal justice are not timeless in nature but have in fact evolved throughout time. Ancient Western societies did not possess criminal law.321 It is important not to present today’s predominant culture as universal, timeless and therefore mandatory. Secondly this overlooks the role that informality plays within Timor legal culture while serving basically the same protective aims of formalism in Western legal systems. One common argument levelled by critics against informal methods of dispute resolution is that the lack of formal procedural rules fails to ensure the protection of victims, witnesses and accused persons. The procedural rules of formal legal systems aim to ensure that no one party can manipulate his or her power to his or her advantage. Such principles of equality are rooted in the predominant legal culture today which perceives each individual as central and autonomous. Such legal conceptions of personhood, whole clearly dominating international discourse today, developed in the specific and particular conditions during Europe’s age of enlightenment.322 Not only is such notions of formality historically based, they can also be explained by the structure and character of particular societies within which they function. The modern society requires rules that focus on protecting the individual because in such modern societies, due to the complex interrelationships between individuals, their multi-group and inter-locking identities, identity becomes only possible on an individual level.323 This has been referred to as embracing the “cult of the individual”. 324 However Timorese society, like most chthonic societies, is organized along group and kinship ties. Smaller societies organized on the basis of 321 James Lindgram, Why the Ancients May not have needed a System of Criminal Law, 76 B.U.L. Rev. 29 GLENN, supra note 301, see generally 140-146 323 Boldt, supra note 318 at 997-1003 324 E. DURKHEIM, THE DIVISION OF LABOR IN SOCIETY (G.Simpson trans. 1960) at 400, 407 322 16 kinship ties and clan structures develop rules and norms aimed at preserving the basic structure of their societies as well as at reflecting their values.325 Individuals are protected in these societies due to their membership in groups. Hierarchy and social status provide individuals with protection. The informality of indigenous dispute resolution mechanisms in these societies ensures that such interaction is possible. 2. Non-Western dispute resolution mechanisms’ inadequate protections: Do international human rights standards provide the only effective framework of protection? The previous section argues that the particular characteristics of a legal system can only be fully understood and evaluated from the perspective of the particular culture. Apart from this, despite valid rationalization and the apparent effectiveness of indigenous legal systems when seen from the perspective of the indigenous society, international human rights advocates argue that indigenous methods should also conform to certain universal human rights standards. While the previous section argues that proper understanding or description of a particular legal culture has to take place within the culture’s context, this section explores whether there are universal standards to which all cultures have to adhere to. The discussions centring round the differences between universal human rights standards and particular cultures are more popularly known as the debate between universalism and cultural relativism. Among concerns raised by human rights activists with regards to Timor’s indigenous dispute resolution structure are those relating to the marginalization of the victim, discrimination of certain culturally 325 Boldt, supra note 318 at 991-995 17 vulnerable groups such as women, and the lack of legal representation at reconciliation hearings.326 While human rights standards have been argued to be universal, they have a distinctly Western origin. Proponents of universal human rights argue that despite their Western origin, there are certain rights which are internationally agreed and accepted as standards which transcend cultural borders and are inured in us as human beings and should apply in equal fashion.327 On the other hand, cultural relativists argue that such an insistence on universal standards ignores existing differences between societies and in reality facilitates the imposition of one culture’s values upon another.328 For example rights couched in individualistic terms do not meet the needs of a society organized in terms of kinship ties and group ties. While different cultural claims have been recognized to a certain extent by the international human rights community, the exact relationship between culture and universal human rights still veers in favour of the latter in dominant human rights discourse. Major international rights instruments proclaim the universal application of their regimes. The preamble of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights both declare that “the inherent dignity and ..equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and “derive from the 326 See generally the concerns outlined in David Van Ness, Restorative Justice: International Trends, presented at Victoria University, Wellington, New Zealand, October 7, 1998 327 Yash Ghai, Universal Rights and Cultural Pluralism: Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims, 21 Cardozo L.Rev. 1095 at 1096 328 JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE (Cornell University Press: Ithaca, London, 1989) at p109 18 inherent dignity of the human person”.329 While the 1993 World Conference of Human Rights’330 Final Declaration recognizes the relevance of culture in relation to human rights, it subordinates the former to the latter by stating that while “All human rights are universal..the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind”.331 The continuing importance and relevance of culture is demonstrated by reservations made to human rights treaties or the outright rejection of certain provisions in these treaties during their negotiations by States citing religious, social or cultural reasons.332 The universalist claims of human rights have been criticized by prominent jurists. Donnelly argues that the debate in human rights between universalism and cultural relativism originates from a misconception of human rights as a concept. Human rights is a framework by which a particular concept of human dignity is secured, one which emphasizes individual autonomy over group or communal identity. Such concepts of human dignity may differ from culture to culture and require different facilitative frameworks.333 Timorese communitarian society does not see the individual as a solitary, independent unit but identifies the individual through his or her group-connections and kinship ties. Human dignity as conceived by Timorese society would not be adequately furthered through an individualistic rights framework but rather through groups and 329 International Covenant for Civil and Political Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999 UNTS 171; International Covenant for Social and Economic Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3 330 Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna 14-15 June 1993, U.N. Doc. A/CONF.157/23 331 Id 332 See generally Declarations and Reservations to the International Covenant of Civil and Political Rights & International Covenant of Social, Cultural and Economic Rights 333 DONNELLY, supra note 328 see generally 47-66 19 ensuring proper respect for status.334 For example, Timor’s Reconciliation Commission in seeking to ensure orderly and fair proceedings in reconciliation hearings put in place Reconciliation Panels composed of elders, leaders and religious figures respected in the community. If the concept of human rights itself is based on Western notions of human dignity, its claims to be truly universal will collapse unless its fundamentals are reworked or expanded so as to incorporate and take into account different cultural and social notions of human dignity. It may be argued that such a fundamental reworking of human rights is already happening with the rise of group rights and solidarity rights on the international arena.335 However most of these newer rights remain soft law and are still in the process of consolidation. Some jurists argue however that universal rights do exist but their application and implementation may legitimately differ from society to society. However this does not address the problem of how do we identify the existence and content of rights which are universal in nature. Jurists attempting to construct a list of universal human rights often settle on those listed in the International Covenant of Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights. Even if these rights may be accepted as universal in nature, despite the fact that they undoubtedly promote a Western individualist concept of human dignity, international and regional organs have recognized that the exact implementation of these rights may differ from society to society. 334 DONNELLY, supra note 328, at 75-77, the difference between traditional and modern societies lies in their conceptions of human dignity. The former sees “One’s dignity – which usually is conceived primarily as an attribute of one’s kinship, age, sex or occupational group-is obtained or validated by discharging the traditionally defined duties of one’s station rather than by autonomously creating or unfolding a unique individual existence” 335 Douglas Lee Donoho, Autonomy, self-governance and the margin of appreciation: developing a jurisprudence of diversity within universal human rights, 15 Emory Int’l Law Rev. 391 at 400 20 Nevertheless, despite the Western origin of human rights, they may remain relevant in assessing post-conflict efforts of non-Western societies for several reasons. Firstly, as observed by Glenn, the rise of globalization and modernity has led to increased intermingling and influence of different communities and societies on each other. 336 Urbanized Timorese youth, exposed to Western-style education in Timorese or Indonesian universities tend to see indigenous dispute resolution mechanisms as less legitimate compared to the formal criminal justice system. Secondly, the human rights language proves useful for groups pushing for change from within non-Western societies. 337 The universal appeal of human rights language empowers politically and culturally disenfranchaised groups in societies. In seeking to empower victims of domestic violence and abuse and change cultural mindsets towards women, Timorese women leaders are resorting to rights against discrimination and women rights as laid out in universal rights instruments such as the Convention for the Elimination of Discrimination against Women.338 Thirdly Treital observes how post-conflict societies have drawn upon international human rights standards to provide a bridge of continuity to the past. 339 By using the language of international human rights, a post-conflict State asserts its continuing membership in the wider international community. 336 Ghai, supra note 327 at 1098-1103 Ghai, supra note 327 Ghai argues that the universalist-cultural relativist ideological argument has often over-shadowed study of its usage as a political negotiation tool. “In no case are rights seen merely as protections agains thte state. They are instruments for the distribution of resources, a basis for identity, a tool of hegemony and they offer a social vision of society. Rights are not necessarily deeply held values, but rather are a mode of discourse for advancing and justifying claims” at 1137 338 Work beings on domestic violence legislation, UNMISET briefing notes, 20 November 2002, available at www.etan.org 339 TREITAL, supra note 40 at 222 337 21 If the role of human rights discourse, in relation to dispute resolution in postconflict societies is largely facilitative, its exact form will differ from society to society. While the Reconciliation Commission, in conceptualizing its procedures, drew on the experience of other truth commissions, its Commissioners were at all times aware of the need to ensure that its process was tailored to meet not only Timorese society as a whole but the customs and practices of each and every region.340 The Chairman of the Commission recognizes that the Reconciliation Commission can serve as a model for other countries only to the extent that local conditions permit. 341 In other words, human rights should not be used as a veiled attempt to impose on post-conflict societies notions or standards of human treatment which the society itself does not subscribe to. The exact content of human rights relating to dispute resolution, such as the right to fair trial, is disputed even within Western communities themselves. B. Answering the question of post-conflict justice ownership In this author’s view, much of the criticisms directed at non-Western dispute settlement mechanisms based on reconciliatory principles are unfounded. Given that there is not yet an international obligation to criminally prosecute international criminals at international law, why did the UN insist on employing formal criminal justice to address international crimes in post-conflict Timor, keeping in mind the Serious Crimes Panel’s well-intentioned but unsuccessful attempts to mete out retributive justice from the perspective of ordinary Timorese? The underlying question when dealing with 340 341 Interview with Father Juvito, supra note 180 Interview with Anaceto, supra note 161 22 accountability for past crimes in post-conflict societies is that of ownership. Who should be the one determining the exact model of justice to be pursued in post-conflict societies when addressing crimes committed during conflict? Some Timorese have protested the UN’s monopoly over certain post-conflict justice decisions. Others yet insist decisions on what post-conflict justice model to be implemented by Timor should have lay ultimately with the Timorese.342 On the other hand, some see the UN’s involvement in Timor’s postconflict justice efforts as necessary due to the international character of crimes committed. 343 Due to their heinous nature and consequences, international crimes are perceived as an attack on humanity as a whole, engaging the concern and attention of the entire international community. In 1970 the ICJ held that certain acts such as “acts of aggression”, “genocide”, “principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”, known also as breaches of erga omnes obligations, gave rise to an interest on the part of all States, regardless of whether they are directly affected by the acts themselves.344 The ICJ further elaborated on the interests and duties of all States in relation to such acts, in a 2004 advisory opinion. These duties include the duty not to recognize or contribute to the acts and to work towards bringing the breach to an end.345 Throughout Timor’s Indonesian occupation, East Timorese leaders made frequent appeals to the UN and Portugal. The duties of indirectly affected States in relation to erga omnes obligation breaches are 342 Interview with Father Domingos, supra note 281 Interview with Father Jovito, supra note 180 344 Id at para. 34 345 Legal Consequences of the Construction of a wall in Occupied Palestinian Territory, 2004, I.C.J para. 156-159 343 23 grounded not only in the moral dimensions inherent in erga omnes obligations but also on the practical considerations. The scale and magnitude of international crimes are capable of producing consequences, such as massive refugee flows, that transcend territorial boundaries. The international community therefore has a very real interest in preventing the escalation of international crimes and pursuing the accountability of international criminals. Nevertheless despite the repercussions of international crimes on the international community, the State most directly affected by any post-conflict justice efforts is the territorial State on whose soil the crimes were committed. The specific needs and intentions of post-conflict societies have in recent years been framed in the language of international law, such as in the form of the right to self-determination. However, on a more pragmatic note, post-conflict justice mechanisms which do not resonate with the local population are not able to guarantee lasting peace. 1. Balancing international and domestic needs : the UN as mediator Too often the interests of the international community and post-conflict societies are portrayed to be at odds with each other. In reality, they are very much interlinked and dependant on each other. The international community’s approval and recognition of post-conflict justice mechanisms often depends on how such mechanisms are received and supported by the local population. The international community’s stamp of approval in turn influences how a particular post-conflict justice mechanism is perceived by the local population. 24 As mentioned above, the interlinkages and shared concerns of the international community and post-conflict societies are often overlooked. This is oftentimes due to a lack of dialogue and communication between national actors and international actors. The efforts of international actors are perceived by struggling post-conflict societies as neocolonialist in nature, insensitive and as attempts to interfere in the internal affairs of the post-conflict society. Post-conflict societies are in turn often perceived by international actors as “failed” States which are incapable of managing their own affairs, in need of tutelage and as potential threats to the international order due to their instability. The UN’s increased role in establishing post-conflict justice mechanisms, if properly executed, may be able to bridge this divide between international and national actors. 346 The UN is today’s closest equivalent to a world representative body. Its involvement carries with it the international community’s stamp of approval. As observed by Childers and Uruquat, the UN provides “the only set of institutions in the world… mandated by virtually all governments to respond in equity and sensitivity, to universal problems and needs.”347 Recent years have seen the UN post-conflict reconstruction efforts grow considerably in both number and scope. Such UN post-conflict reconstruction efforts, which often include the implementation of post-conflict justice, are formulated and implemented by independent UN bodies set up on a case specific basis by the UN Security Council. These UN bodies have the capacity to rise above partisan 346 Jacob S. Kreikamp, UN Postconflict Reconstruction, 35 N.Y.U.J. Int’l L. &Pol. 619 CHILDERS & URQUHART, RENEWING THE UNITED NATIONS SYSTEM (Dag Kammarskjold Foundation: Sweden, 1994) at p182 reproduced in CONNIE PECH, THE UNITED NATIONS AS A DISPUTE SETTLEMENT SYSTEM: IMPROVING MECHANISMS FOR THE PREVENTION AND RESOLUTION OF CONFLICT (Kluwer Law International: The Hague, 1996) at p260 347 25 domestic and international interests. However, the domestic legitimacy of post-conflict justice mechanisms set in place by such UN reconstruction efforts can only be assured by proper consideration and incorporation of local concerns and needs. When accompanied by appropriate consultative mechanisms, such UN reconstructions efforts may succeed in negotiating a balance between the needs of post-conflict societies and the expectations of the international community which are acceptable and legitimate in the eyes of both. UN bodies charged with establishing post-conflict justice mechanism in postconflict societies have often been required to do so with varying degrees of participation or consultation with the directly affected post-conflict society.348 The degree of consultation and participation by local populations in such UN operations has varied. In some instances, the UN has assumed almost exclusive powers for a specified interim period over a post-conflict society’s executive, legislature and civil administration. In Irian Jaya, the United Nations Temporary Executive Authority over Irian Jaya or UNTEA was to have full authority to administer the territory before its transfer to Indonesia.349 UN Transitional Administrators in both Kosovo and Timor were given wide sweeping powers by the UN Security Council to enact law and establish functioning institutions for the respective territories. In Kosovo, Security Council Resolution 1244, issued under Chapter 7 of the Security Council’s powers, called on the Secretary General to authorize a Transitional Administrator with the interim administration of Kosovo.350 In East Timor, 348 V.Y.Ghebali, Le developpement des operations de maintain de la paix depuis la fin de la guerre froide, Trimestre du Monde, 1992/4, p67-85 349 The problem with UNTEA was that under the agreement between Indonesia and the Netherlands signed on 15 August 1962 which set up UNTEA, Indonesia instead of UNTEA was given authority to carry out the plebescite. Indonesia handpicked representatives who voted for integration into Indonesia. See YVES BEIGBEDER, INTERNATIONAL MONITORING OF PLEBISCITES, REFERENDA AND NATIONAL ELECTIONS: SELF-DETERMINATION AND TRANSITION TO DEMOCRACY, 1994 (Martinus Nijhoff Publishers: Holland) at 139-142 350 S.C. Res. 1243, U.N. SCOR, U.N. Doc. S/RES/1244 (1999) at para. 10 & 11 26 Security Council Resolution 1272 authorized UNTAET to assume “overall responsibility for the administration of East Timor” and to “exercise all legislative and executive authority, including the administration of justice”.351 While Security Council Resolution 1244 emphasized that the Kosovar population were to “enjoy substantial autonomy” under the UN’s transitional administration and Security Council Resolution 1272 stated the need for UNTAET to consult and cooperate closely with local Timorese, it is obvious that both these Resolutions envisaged that the UN’s role in formulating and directing post-conflict decisions, including that of post-conflict justice, would be predominant compared to that of local representatives and bodies. There have been other UN post-conflict reconstruction efforts which prioritized local decision-making powers over the UN’s. Prior to the 1990s, the UN’s role was limited to the mediating and brokering of ceasefire agreements between warring factions; the monitoring of ceasefires and the organizing of local elections or plebiscites. Kreikamp describes such efforts as “consent-based” in contrast to those undertaken in Kosovo and East Timor which Kreikamp criticizes as “neo-colonialist” in character.352 In such “consent-based” UN operations, post-conflict decisions, including that on post-conflict justice, are initiated and taken by local actors themselves while the UN plays a supportive and facilitative role. In El Salvador the UN facilitated the signing of the 1990 San Jose Agreement on Human Rights, a ceasefire agreement between the government and rebel movement, Frente Farabundo Marti para la Liberacion Nacional (FMLN).353 The San Jose 351 S.C.Res, 1272. supra note 1 at 2 See generally Kreikamp, supra note 346 353 Agreement on Human Rights, Annex to Note Verbale dated 14 August 1990 from the Charge d’affaires of the Permanent Mission of El Salvador to the United Nations Addressed to the Secretary General, U.N. GAOR, 44th Sess., Annex, Agenda Item 34, U.N. Doc. A/44/971-S/21541 (1990) 352 27 agreement charged the UN with setting up of a truth commission which would investigate and report on crimes against humanity committed in the past.354 The UN Observer Mission in El Salvador or ONUSAL was also set up to monitor the implementation of the San Jose Agreement.355 Four months after the signing of the Sane Jose Agreement, the same parties signed the more comprehensive New York Agreement which set up the National Commission for the Consolidation of Peace, or COPAZ. COPAZ was composed of representative from El Salvador’s main political parties and was charged with “overseeing the implementation of the political agreements reached by the Parties”.356 While UNOSOL representatives attended COPAZ deliberations, the UN’s role in El Salvador was clearly subordinate to that of local actors.357 In the case of Cambodia, the UN facilitated the negotiating and signing of the Paris Peace Agreements of 1991 between Cambodia’s various warring political factions. The parties agreed in these Agreements that the UN Transitional Administration in Cambodia or UNTAC would administer Cambodia pending elections.358 However these Agreements also placed ultimate legislative and executive authority during the transitional period of UN administration in a Supreme National Council consisting of local representatives.359 So as to leave no doubt as to the source of ultimate authority, the Agreements stated that UNTAC’s administrative powers were derived by delegation from the Supreme National 354 Mexico Agreements, Annex to Letter Dated 8 October 1991 from El Salvador Transmitting the Text of the Mexico Agreement and Annexes signed on 27 April 1991 by the Government of El Salvador and the FLMN, U.N. Doc. A/46/553-S/23130 (1991), reprinted in U.N. Blue Book Series, 4 The United Nations and El Salvador, 1990-1995 355 S.C. Res. 693, U.N. SCOR, 46TH Sess., 2988th mtg., U.N. Doc. S/RES/693 (1993) 356 New York Agreement, Annex to Letter dated 26 September 1991 from the Permanent Representative of El Salvador to the United Nations Addressed to the Secretary General, U.N. GAOR, 46th Sess., Annex, Agenda Item 31 at para. 1(2) 357 Id at para. 1(2)b 358 Agreement on Comprehensive Political Settlement of the Cambodia Conflict, 23 October 1991, 1663 U.N.T.S. 56, preamble 359 Id at 59 28 Council.360 Recent UN rebuilding efforts in Afghanistan all the more emphasize the UN’s subordinate role to the local Afghani interim administration. The 2001 Bonn Agreement, negotiated by local Afghani representatives under the auspices of the UN, established an interim power-sharing arrangement between various Afghani factions and states that “the (local) Interim Administration shall be entrusted with the day-to-day conduct of the affairs of state and shall have the right to issue decrees…with the assistance of the United Nations”.361 With regards to issues of post-conflict justice, the Bonn Agreement recognizes the UN’s “right to investigate human rights violations and where necessary, recommend corrective actions”.362 This is in contrast to the UN’s approach in Timor where the UN Security “demand(ed) that those responsible for such violence be brought to justice”. 363 While local participation in UN reconstruction efforts is possible and desirable in the interests of ensuring their legitimacy within the post-conflict society, jurists have argued that post-conflict decisions made by parties involved in the will more often than not be motivated by the parties’ self-interests rather than concerns of justice.364 Local actors are also usually more concerned with practical immediate concerns facing the postconflict society such as stability, and are more likely to take into account the local population’s expectations and culture.365 Some jurists have argued that for these reasons, while other aspects of nation-building should involve local consultation and participation, 360 Id Agreement on Provisional Arrangements in Afganistán Pending the Re-establishment of Permanent Government Institutions, 15 December 2001, available at www.unama-afg.org, Part C (1) 362 Annex II, 6 363 UN. S.C. Res. 1272, supra note 1 para 16 364 Fen Osler Hampson, Can Peacebuilding work? 30 Cornell Int’l L.J. 701at 714 365 Id 361 29 decisions relating to post-conflict justice are best undertaken by a neutral third party.366 However can justice concerns be so easily divorced from the post-conflict society’s needs and culture? A UN advisor to UNTAET recognised that one of the problems faced by the UN when implementing post-conflict justice in Timor was to “find the right balance between (criminal) justice and reconciliation in a society that holds the principle of forgiveness at the core of its culture”367. Others observe how post-conflict justice interests should be balanced with the post-conflict society’s other long-term goals such as political stability. 368 Also there are practical problems with the facilitation of local participation and conduct of local consultation in post-conflict situations. The pressing humanitarian needs of post-conflict societies require quick, effective decision-making contrary to the deliberative nature of consultation. This is especially true for decisions taken on postconflict justice. Often there is a need to address such crimes and provide accountability to prevent mob justice, evidence destruction or witness intimidation.369 Furthermore particular care has to be taken in identifying local consultative actors so as to ensure fair local representation in consultative bodies and avoid politically entrenching particular individuals to the disadvantage of others.370 366 Id Hansjorg Strohmeyer, Making Multilateral Intervention Work: The U.N. and the Creation of Transitional Justice Systems in Kosovo and East Timor, 25 Fletcher F.World. Aff. 107 at 119 368 Hampton supra note 366 at 712. While Hampton recognizes that the involvement of third parties is sometimes the best way to ensure an appearance of neutrality when seeking to address past human rights violations, he also recognizes that due to political instability and considerations, “peace and justice do not always necessarily work in tandem…(and that) Empirical evidence suggests that a concern for justice must be tempered by the realities of negotiation and by the parties’ interest in reaching a political settlement” 369 Id at 122 370 Id at 124 367 30 2. Post-conflict justice in Timor: examining the decision-making process The UN’s role in East Timor, pre-referendum and post-referendum, was set out in agreements signed between Indonesia and Portugal, the latter representing Timorese interests due to Indonesia’s reluctance to formally recognize Timorese resistance leaders, which came to be known as the May 5 Agreements.371 Pre-referendum, the UN’s involvement in East Timor was limited to the referendum’s organization and administration. The May 5 Agreements, charged the UN Secretary General with organizing the referendum and reporting on its results to the UN, Indonesia, Portugal and to the Timorese. Indonesia was to be “responsible for maintaining peace and security in East Timor”. 372 If the referendum resulted in a majority vote against autonomy with Indonesia, in other words in a vote for outright independence, Indonesia together with Portugal and the UN Secretary General was to “agree on arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations”.373 Thus the May 5 Agreements charged the UN with temporarily occupying the political vacuum left by Indonesia’s relinquishment of authority over East Timor and “enabling East Timor to begin a process of transition towards independence”.374 Post-referendum, the UN established UNTAET and empowered it with broad executive and legislative powers over East Timor. UNTAET’s mandate was specified in UN Security Council Resolution 1272 as follows: 371 May 5 Agreements, supra note 26 Id, Art 1,2 & 5 373 Id, Art 6 374 Id 372 31 (i) to provide security and maintain law and order throughout the territory of East Timor, (ii) to establish an effective administration, (iii) to assist in the development of civil and social services, (iv) to ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance, (v) to support capacity-building for self-government, and (vi) to assist in the establishment of conditions for sustainable development.375 UN Security Council Resolution 1272 also required UNTAET to “consult” the Timorese population in the conduct of its duties.376 Upon assuming its duties in postreferendum Timor, UNTAET engaged in consultations and meetings with the CNRT das as the then only existing local political entity in East Timor.377 Following consultations were then later carried out through more formal structures. In December 1999 UNTAET Regulation 1999/2 established a 15 member National Consultative Council.378 The National Consultative Council was to serve as “the primary mechanism through which the representatives of the people of East Timor (would) actively participate in the decision making process….(through) which the views, concerns, traditions and interests of the East Timorese people (would) be represented”.379 However UNTAET Regulation 375 To do so the SC authorized the establishment of three components: Government and Public Administration, Humanitarian and Emergency Rehabilitation and the Force Commander overseeing the military component, S.C.Res, 1272, supra note 1 376 Id at 2 377 Simon Chesterman, East Timor in Transition: From Conflict Prevention to State-Building, May 2001 Report, International Peace Academy. 378 The National Consultative Council consisted of 7 representatives of CNRT (divided between its constituent parties); 3 representatives of political groups that voted against independence; 1 representative of the Catholic Church in East Timor; the Transitional Administrator and 3 UNTAET members. 379 Reg. No. 1999-2, UNTAET, 2 December 1999, UNTAET/REG/1999/2, s.1(2) 32 1999/2 also emphasized how the advisory role of the National Consultative Council would “in no way prejudice the final authority of the Transitional Administrator”.380 On 14 July 2000 UNTAET sought to increase the Timorese’ direct participation in East Timor’s daily administration by abolishing the National Consultative Council and replacing it with a National Council that was exclusively East Timorese.381 The National Council was empowered to initiate, modify and recommend draft regulations and amend regulations.382 These regulations would be approved by the Transitional Administrator after prior approval by the Transitional Cabinet if “in his discretion” the Regulations were consistent with his mandate. 383 On the same day, UNTAET also set up a Transitional Cabinet in which individual Timorese would take over the certain executive portfolios handled by UNTAET.384 The Cabinet was also charged with the formulation of executive policies and overseeing Timor’s administration.385 All the Cabinet’s decisions were however subject to review by the Transitional Administrator and would only come into affect after obtaining his approval.386 Despite UNTAET’s efforts to include local actors in post-conflict reconstruction, there was still a perceived lack of consultation and lack of empowerment on the part of 380 Id s. 1(3) Reg. No. 2000-24, UNTAET, 14 July 2000, UNTAET/REG/2000/24. The National Council consisted of 7 representatives of CNRT; 3 representatives of political parties outside CNRT; a representative each from the Roman Catholic Church in East Timor, the Protestant Church denominations in East Timor, the Muslim community in East Timor, women’s organizations in East Timor, student/youth organizations in East Timor, the Timorese NGO forum, the professional associations in East Timor, the farming community in East Timor, the business community in East Timor, the labour organization in East Timor and each of the 13 districts of East Timor; a “Cabinet of the Transitional Government of East Timor” was also set up consisting of 4 East Timorese and 4 international staff; 382 Id, s2.1 383 Id, s2.3 384 Reg. No. 2000-23, UNTAET, 14 July 2000, UNTAET/REG/2000/23 385 Id, s.4.1 386 Id, s4.3 381 33 local political leaders, resulting in several threats and actual resignation of some local political leaders.387 This feeling of disempowerment was even more prevalent among ordinary Timorese. The National Council’s constitutive document, UNTAET Regulation 2000/24 required the Council to hold at least one public hearing on each Regulation.388 Timorese civic groups and non-governmental organizations have protested that this in reality seldom occurs. The same issue of consultation and participation, or the lack thereof, arises with respect to UNTAET decision to establish the Serious Crimes Panel and pursue criminal justice for international criminals. UNTAET’s decision to do so was based on UN Security Council Resolution 1272 which not only established UNTAET but also called for perpetrators of international crimes to be brought to justice. Unlike Timor’s Truth Commission which was a local initiative and formulated with close consultation among local Timorese, the Serious Crimes Panels was established on UNTAET’s initiative alone without any consultation with Timorese leaders or community. Despite the lack of consultation involved in UNTAET’s decision to criminally try international criminals before the Serious Crimes Panels, UNTAET’s decision at first sight seems to resonate with the view of most Timorese who agree that perpetrators of serious crimes should face criminal justice.389 Most are in fact disappointed with the Timorese government’s decision to pursue reconciliation with Indonesia which includes 387 Chesterman, Id. In December 2000 Timorese Cabinet ministers threatened to resign in a letter to the SRSG in which they complained of being “used as a justification for the delays and the confusion in a process which is outside our control”; In August 2000 both Gusmao and Ramon-Horta resigned twice but were reinstated. In March 2001 Gusmao resigned again from the NC. 388 UNTAET Reg. 2000-24, supra note 381 s7 389 Crying without Tears Report, supra note 200 at 18-29 34 reconciliation with Indonesian military leaders responsible for most of the atrocities in Timor.390 The UN’s mistake then lies not so much in its decision to implement criminal justice for serious crimes but its failure to ensure that the Serious Crimes Panels was fully empowered and equipped to carry out Timorese views of retributive justice. However upon closer examination, the two-track post-conflict justice system effectively established by the Serious Crimes Panels and Reconciliation Commission does not truly reflect Timorese views on post-conflict justice. Some Timorese leaders have criticized the UN for maintaining such a strict subject matter jurisdiction of “serious” and “non-serious” crimes between the Serious Crimes Panel and Reconciliation Commission, arguing that the “serious” or “non-serious” nature of a crime should be determined by Timorese themselves. 391 This is because Timorese indigenous culture does not subscribe to strict categorization of wrongs as in Western legal systems. While the separate processing of serious and less serious crimes by the formal criminal justice system and indigenous reconciliatory processes respectively seems at first glance to be based on the dualist nature of Timorese legal culture, the current post-conflict justice system severely reduces the role played by indigenous mechanisms in Timorese legal culture.392 According to the practice of Timorese indigenous society, all wrongs would be brought first before local communal dispute resolution systems. Only if it the traditional leaders involved decided that the formal legal system’s intervention was necessary due to the seriousness of the crime or intractable position of parties involved, would be the resolution of such wrongs be directed to the formal justice system. In other words, in 390 Id Reconciling Justice Report, supra note 201 at 56 392 Id, at 55 391 35 Timorese indigenous legal culture, traditional leaders and victims play important roles in deciding whether cases remain within the indigenous system or be transferred to the formal legal system. As suggested by some Timorese, all crimes should have proceeded through traditional channels before being transmitted to the formal criminal justice system. 393 Without proper consultation and participation of local actors, post-conflict justice mechanisms intended to deliver justice may result instead in feelings of injustice among the local population. This is due to the local population’s inability to identify or understand the justice mechanism, its procedure and results. As explained by a Timroese community leader “it was very strange for UNTAET to force people to implement something against culture…the problem with UNTAET on justice is that UNTAET wanted major criminals to go to jail, but who will feed them? Only…crimes like mass murder should go to the courts.” 394 In resource-scarce agricultural Timorese society, jail sentences are perceived as avoidance of one’s duties towards the community. Perpetrators who have completed their jail sentences may nevertheless not be accepted back into his community as he has yet to apologize or make reparations to the community. It should be noted that in reconciliatory hearings organized by community leaders prior to the establishment of the Serious Crimes Panels and the Reconciliation Commission, most low-level militia members were received back into their communities after they had expressed repentance for their acts, apologized and pledged to undertake certain acts of reparation.395 Also due to local Timorese’ unfamiliarity with formal legal systems, many 393 Id, at 60 Id, at 60 395 Reconciling Justice Report, supra note 201 at 35 394 36 remain ignorant of the Serious Crimes Panels progress, its hearings and judgments. Regulation 1999/20 of the Serious Crimes Panel guarantees victims’ rights to information and hearing throughout the progress of the trial.396 The communication of such information is however often impeded due to 1999’s destruction of most of Timor’s communication infrastructure and the fact that the majority of Timorese live in remote mountainous villages. Often such information has to be personally communicated to victims by dedicated staff from the Serious Crimes Unit who trek into the mountains to do so.397 Witnesses and victims also feel frustrated due to their unfamiliarity with formal legal procedures. For example, many don’t understand why hearsay evidence cannot be used by the prosecutors.398 IX.CONCLUSION The Serious Crimes Panels’ mandate will come to an end on May 2005.399 The Serious Crimes Unit has concluded all investigations as of 30 November of 2004, bringing the number of indictments and persons charged since its inception in 2000 to 95 and 391 respectively.400 The Reconciliation Commission has, as of March 2004, stopped taking applications for reconciliation hearings so as to enable the Commission to focus on drafting its final report. It has received the total of 1547 applications, significantly over its 396 397 Interview with SCU investigator (wishes to remain anonymous), on file with author, dated 31/12/2003, Appendix 10 398 Id 399 S.C. Res. 1573, SCOR, U.N. Doc. S/RES/1573 (2004) 400 SCU issues its final indictments, Serious Crimes Unit Information Release, 17 December 2004, available at www.jsmp.minihub.org 37 original target of 1000 cases, and held 736 reconciliation hearings by the end February.401 The Commission’s final report will be presented to Timor Leste’s government on March 2005. In little over 5 years, Timor Leste’s post-conflict justice system will have run its course and come to an end. However already the media and non-governmental organizations are voicing dissatisfaction with the results of Timor Leste’s post-conflict justice, in particular its failure to make those most responsible for 1999’s crimes account for their crimes. 402 These dissenting voices include local Timorese themselves who are dismayed that the masterminds of crimes committed in Timor during Indonesia’s occupation will not be held accountable for their crimes, either by criminal justice or reconciliatory justice. 403 Timor Leste’s two-track system remains a unique example of post-conflict justice which seeks to balance international and national ideas of accountability for crimes committed during conflict. This thesis has sought to examine the rationale for the UN’s implementation of Timor Leste’s two-track post-conflict justice system. As stated above, international law as demonstrated in State practice, does not yet proscribe an obligation to criminally prosecute international crimes on post-conflict societies. The variety of circumstances, needs and expectations faced by various post-conflict societies makes it impossible that a one-size-fits-all post-conflict justice system can be subscribed to. The conflicts which arise between advocating an international standard of post-conflict justice such as criminal prosecution and accommodating the legal traditions of individual post401 Public Report on the Asia and Pacific Region, Office of the High Commissioner of Human Rights, 8 March 2004 at 24, available at www.ohchr.org 402 Interview with Amado, supra note 205 403 Participants in Conference call for Establishment of an International Tribunal, Judicial System Monitoring Programme, 27 September 2004, available at www.jsmp.minihub.org 38 conflict societies spring generally from two practical considerations. If the kind of postconflict justice implemented does not resonate with the post-conflict society’s culture and traditions, it will fail despite its claims to universality. On the other hand post-conflict decisions which are entirely left to the post-conflict society itself often give rise to the risk or accusations of political manipulation or majoritarian abuse. An international standard preserves, at the very least, an appearance of neutrality. However, if an international standard of post-conflict justice is to be arrived at, it should be one that truly demonstrates international solidarity and shared world values, accompanied by sufficient political will in its implementation. As they stand today, standards of post-conflict justice are still in flux and in the process of formation. Instead of resorting to claims of universalism, a truly inclusive international standard can only be constructed with respectful consideration and inclusion of the interests of all States involved, especially that of the post-conflict society itself.404 This thesis examines the increased role of the UN in post-conflict reconstruction and its involvement in post-conflict justice implementation. It concludes that such UN operations, if implemented with procedures and mechanisms which enable local consultation and participation in post-conflict decisions, will not increase the legitimacy of such decisions among the local population but contribute positively to the formation of any international standard or practice on post-conflict justice in the future. 404 Rama Mani, Restoring Justice in the Aftermath of Conflict: Bridging the Gap between Theory and Practice in INTERNATIONAL JUSTICE (ed. 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Rev David Cohen, Seeking Justice on the Cheap: is the East Timor Tribunal Really a Model for the Future, Analysis from the East-West Center, No. 61, August 2002 Anne L.Quintal, Rule 61: The “Voice of the Victims” Screams out for Justice, 36 Colum. J. Transna’l L. 723 Winston P.Nagan, Strengthening Humanitarian Law: Sovereignty, International Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia, 6 Duke J.Comp & Int’l L 127 Suzannah Linton & Caitlin Reiger, The Evolving Jurisprudence and Practice of East Timor’s Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior Orders, Melbourne Journal of International Law, 2003 Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits, 62 S. CAL. L. REV. 1331 John Lawrence Hill, A Utilitarian Theory of Duress, 8 Iowa L.Rev. 275 David S.Rutkowski, A Coercion Defense for the Street Gang Criminal-Plugging the Moral Gap in Existing Law, 10 ND J.L. Ethics & Pub Pol’y 137 Hiroshi Wagatsuma & Authur Rosett, 20 Law & Society Rev. 461 F.Matthews-Giba, Religious Dimensions of Mediation, 27 Fordham Urb. L.J. June 2000 Robert Weisberg, The Practice of Restorative Justice: Restorative Justice and the Danger of “Community”, 2003 Utah L.Rev. 343 45 Katie Long, Community Input at Sentencing: Victim’s Right or Victim’s Revenge, 75 B.U.L. Rev. 187 Richard C.Boldt, Criminal Law: Restitution, Criminal Law and the Ideology of Individuality, 77 J.Crim. L. & Criminology 969 Reports East Timor: Justice past, present and future, ASA 57/001/2001, 27 July 2001 available at http://www.amnesty.org The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation, by Piers Pigou for for UNDP Timor-Leste, April 2004 Crying Without Tears: In Pursuit of Justice and Reconciliation in Timor Leste: Community Perspectives and Expectations, by Piers Pigou for the International Centre for Transitional Justice, August 2003, available at www.ictj.org Reconciling Justice “Transitional” Law and State Judiciary in East Timor, by Tanja Hohe and Rod Nixon for the United States Institute of Peace, January 2003 Report of the Indonesian Commission of Investigation into Human Rights Violations in East Timor, 31 January 2000, available at http://www.smh.ou.au. Intended to fail: the trials before the ad hoc human rights court in Jakarta prepared by Professor David Cohen for the International Centre for Transitional Justice “Law and Justice in East Timor-A Survey of Citizen Awareness and Attitudes Regarding Law and Justice in East Timor”-Executive Summary, February 2004, Asia Foundation David Mearns, Looking Both Ways: Models of Justice for East Timor, Australian Legal Resources International, November 2002 Soares, Dionisio da C.Babo, Nahe Biti: The Philosophy and Process of Grassroots Reconciliation (and Justice) in East Timor, 2002 James Lindgram, Why the Ancients May not have needed a System of Criminal Law, 76 B.U.L. Rev. 29 Yash Ghai, Universal Rights and Cultural Pluralism: Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims, 21 Cardozo L.Rev. 1095 Jacob S. Kreikamp, UN Postconflict Reconstruction, 35 N.Y.U.J. Int’l L. &Pol. 619 Fen Osler Hampson, Can Peacebuilding work? 30 Cornell Int’l L.J. 701 Hansjorg Strohmeyer, Making Multilateral Intervention Work: The U.N. and the Creation of Transitional Justice Systems in Kosovo and East Timor, 25 Fletcher F.World. Aff. 107 Simon Chesterman, East Timor in Transition: From Conflict Prevention to StateBuilding, May 2001 Report, International Peace Academy News publications “Pinochet and the Prospect of Criminal Justice”, by Joanne Mariner, 15 August 2000, CNN available at htttp://archives.cnn.com/2000/LAW/08/columns/fl.mariner.pinochet.08.25/ Mark Davis, A licence to kill, 15 March 1999, available at http://www.abc.net.au/4corners/stories/s20270.htm 46 Sian Powell, Time Runs out for Timor Justice, The Australian, 22 November, 2004, available at www.etan.org Papua Police Move Criticized, BBC, 2 December 2003, available at http://news.bbc.co.uk/1/hi/world/asia-pacific/3255876.stm Jakarta rejects Timor’s Convictions, BBC, 6 August 2004, available at http://news.bbc.co.uk/1/hi/world/asia-pacific/3540762.stm East Timor’s ex-Governor released from jail, Associated Press, 6 November 2004, available at www.etan.org M.Taufiqurrahman, Reopening East Timor cases possible, says AGO, The Jakarta Post, 10 November 2004, available at www.etan.org Indonesia Court holds retrospective prosecution unconstitutional: trials for East Timor go from bad to worst, Judicial System Monitoring Programme Press Release, 27 July 2004, available at www.jsmp.minihub.org What Happens Next?, TIME Magazine, 3 September 2001 Indonesia, E.Timor Form Commission on Rights Violations, Associated Press, 21 December 2004, available at www.etan.org Mark Davis, A License to Kill, 13 March 1999, Four Corners (Australian Broadcast Cooperation) Work beings on domestic violence legislation, UNMISET briefing notes, 20 November 2002, available at www.etan.org Timor’s Guterres Forms Papua Militia, South China Morning Post, 2 December 2003, available at www.etan.org Participants in Conference call for Establishment of an International Tribunal, Judicial System Monitoring Programme, 27 September 2004, available at www.jsmp.minihub.org Other sources Catechism of the Catholic Church Holy Bible 47 APPENDIX I Interview with Kaligis, dated 23/12/03 1. I tried the first case that went through the ad hoc court which focuses on the topic of Timor-timor. The case was the first human rights litigation which I have done in Indonesia. 2. What is the difference between trying a normal criminal case and trying a human rights case before the ad hoc court? In a normal case there must be supporting witnesses to the suspected persons. But when we talk about cases of crimes against humanity, which are done in random, especially in the case of Timortimor, where such crimes already took place during the time of Portugese rule, we cant determine exactly who attacked who. Even when Timor-timor was under the regime of Indonesia, we cant exactly know who killed who. In normal criminal cases we can enlist the help of supporting witnesses. But here because everything occurred suddenly, where counter-attacks happen suddenly, we cannot determine who attacked first, or that who is the victim and vice versa of course. When we talk about the process of evidence in the court for normal criminal cases, we are able to ask witnesses who attacked who. But when we talk about crimes against humanity, we must refer to historical background. In Timor-timor, after the independence so far up to now, there are attacks by groups. Even a year ago there was an attack by groups on their Prime Minister. During the riots they attacked the Prime Minister’s house and were even going to kill him. So what happened under the regime of Indonesia was fabricated by Ramos Hortas and people categorize it as a crime against humanity. So there are two dimensions to this. The political dimension and what really happened in fact, what happened in the field. When we talk about normal criminal cases, there is such thing as tempos and locos, the time and the place. We must precisely describe when it occurred and where it occurred. But in the trials of the ad hoc court, in my experience, when we ask questions such as who is responsible, who killed who, we do not get clear answers. 48 3. Could you describe some of the evidential problems you had at the ad hoc human rights court? Eg proving an international armed conflict existed For example in Nuremberg it was very clear cut who was responsible-Hitler. In Tokyo it was also very clear as they declared a war. When we talk about the ad hoc trials, we do not have a clear aggressor. 25 years ago Xanana Gusmao himself committed terrorist acts. To get a clearer picture we must go back to history, why at that time the USA supported Indonesia’s relations with Timor-timor. During the cold war Kissinger supported Indonesia’s actions towards Timor-timor. After the cold war the atlas of Indonesia changed. The Bali bombings, Jihad attacks all affected Indonesia’s stature internationally. To escape from international criticism, Indonesia had to act to prove that they was not a terrorist State in relation to Timortimor. I acted for Soeres, the ex-governor of Timor-timor. 25 years ago he was kidnapped by Xanana. Before independence, group violence was publicized to attract international support for its cause. After independence, similar group violence goes uncriticized. While Timor-timor’s events were driven politically, do you think the accuseds were driven by purely political reasons and should this fact exonerate their guilt? So far the main reason encountered in the trials are the witnesses inability to articulate how they arrive at the conclusion that the accused committed the crime. For example in the case of Soeres, that was during the time of the Indonesian regime, police operations carried out on Timor-timor were valid. However during the trial there are no witnesses willing or able to testify for sure who were the ones who committed the crimes. Especially since they themselves also committed crimes during that time. So their testimonies are reduced to mostly hearsay. In the case of Nuremberg and Tokyo and Iraq it was very clear-cut which leader was involved. 49 4. However based on the theory of command responsibility, even if Soeres himself did not commit the crimes, shouldn’t he have known and be held liable for acts committed by his subordinates? Soeres, at that time was in Jakarta. He is Timorese and he never supported the acts of the Indonesian army. He issued a direction to his subordinates to settle the issue peacefully. We were in the post-Suharto era, the reformation era where demonstrations are allowed. How can one group be preferred over the other? Both should be given the freedom to express their own opinion. 5. Even in the Nuremberg trials, not only Hitler was held responsible but his lower commanding officers were also held responsible for the acts of their subordinates under the theory of command responsibility. However in Timor the only reason we have an ad hoc tribunal is because we are not the winner of the dispute in Timor-timor. Xanana himself in the case of Soeres sent a letter to the ad hoc court that Soeres should not be brought to trial. Please refer to my two books for the contents of this letter. If the head of the State himself sent such a written affidavit, the only conclusion possible is that Soeres’ conviction was a political decision. 6. What about the army and police commanding officers? Do you think they should be held responsible? That is the whole problem. Who ordered it? Soeres statements to his subordinates was to try to contain the situation consistent with human rights standards. All this is not reported by the international community. From the very beginning the international community has not been impartial in their evaluation of Timor-timor. The referendum itself was not conducted in a fair manner, What happened was proindependence voters gathered to vote earlier and declared the referendum over before pro-Indonesian voters had a chance to vote. 7. Therefore would you say that a fair characterization of what occurred in East Timor was the State trying to impose public order, an attempt that sadly went out of control? Yes and the situation was further worsened by the biased interventions of third party States such as Australia. 50 8. Do you think it would have been better if the trials were carried out under the UN? The UN is itself a political body. Look at the Security Council. Do you think Bush is correct now making incursions into Iraq based on accusations of weapon possession, like an international police. Look at the case of Somalia. Do you think they would have quit Somalia so quickly if there had been oil in Somalia? Dili’s situation is also currently unstable. It is merely not announced as Ramos Hortas is very popular. 9. Do you think having an international tribunal would solve problems of expertise, finance and resources? While both the State and the non-State party committed wrongs, the State does have a right and in fact a duty to restore public order, international law does impose on the State a higher duty vis-àvis non-State groups with respect to ensuring that human rights are not violated in civil conflict. Why do you think Ambon has not attracted international attention? Because third party States such as Portugal not involved in Timor. 10. How did the court find the systematic plan? The court was hesitant in finding a systematic plan. Actually who made the most human rights violations was Portugal during Portuguese colonization. 11. If perpetrators on both sides were charged, and not only Indonesian ones? Would it be fair? Why aren’t human rights violations of the past charged? Those committed by Xanana during the Cold War. Now it is not fair. If two persons do the same. One goes to trial and one does not-its not fair. They both did wrong. The loser goes to court, the winner escapes. Victimology. 51 52 APPENDIX 2 Interview with Anaceto, dated 8/1/04 1. When and how was the idea of reconciliation proposed? Even when we were fighting for independence, many leaders already talked about the importance of having reconciliation. In 1999, during the UNTAET Transitional Authority, within the CNRT, there was an separate committee called the reconciliation committee headed by Xanana as the President of CNRT. There were many initiatives proposed within the reconciliation committee. However these were vague initiatives. The concept of reconciliation proposed was also unclear. During the CNRT Congress in 2000, I was a member of the CNRT social, economic and reconciliation committee. I proposed a resolution that there was a need to form a truth and reconciliation commission which would issue public findings. Though reconciliation has always been talked about within the CNRT, what it meant was often unclear. There I wouldn’t say that I came up with this idea in the resolution but merely fleshed it out further. This resolution was tabled at the plenary Congress. This resolution urged UNTAET to set up a truth and reconciliation commission based on law. UNTAET responded very favourably to this. This was because CNRT had gained much legitimacy being the umbrella organization of all Timorese political parties. UNTAET set up an ad hoc committee consisting of representatives from NGOs, women groups, youth groups, ex-political prisoners, churches, CNRT and from UNTAET’s human rights unit and serious crimes unit. This ad hoc committee was tasked with the preparation of the establishment of the CAVR, carrying out comparative studies of other TRCs. I was on the ad hoc committee, representing Yayasan Hak. There were about nineteen to twenty of us involved in this process. We prepared a draft which was presented to the Transitional Cabinet and then presented to the National Consultative Council which was the Transitional Parliament. I was also a member of the NCC. We worked hard to finetune the draft into its final form as the current regulation. It took us till June or July 2001 to finalize the regulation. 53 2. You mentioned that comparative studies with other TRCs were carried out by the ad hoc committee. Which TRC’s influence was felt the most? South Africa. At that time the TRC that influenced me the most was SATRC though I am aware that other countries such as Argentina also had established TRCs. What was on my mind at that time was how would we set up an institution specific to our situation, that would be formal, official and sufficiently established to achieve reconciliation. 3. In your opinion what is the meaning of reconciliation? Some see it as being influenced by Catholic and traditional beliefs. As I said, when the idea of reconciliation was first mooted at the CNRT, none of us had a clear idea of what it meant or entailed. Reconciliation is not a once-off event or an everyday happening. Now I am more and more convinced that reconciliation is a process. A process of building a new culture, a new nation. We start this process with building a culture of respecting human rights, of respecting and accepting one another, of non-violence. For me that is reconciliation. 4. 5. Did the UN’s insistence of trying individuals for serious crimes conflict with this concept of reconciliation? Reconciliation involves justice. The process of finding the truth brings about justice. Only with the truth will there be justice. Reconciliation is a process. When we send someone to court and then to jail we think that settles the problem. But then again what is justice? There are different definitions eg formal justice. If we had only formal justice, what are our capabilities of processing all claims? Therefore though our principle is to bring about justice, we must also be realistic. What are our resources? Is the system able to support us? Therefore we settle with a balance. Serious crimes will go to court. Less serious crimes will go to the CAVR. Did the original CNRT proposal of reconciliation include serious crimes? The original concept proposed was really unclear. We only knew that it would include the meeting of people, ceremonial activities. 54 6. 7. Most peoples perception of justice is that of formal justice. Does this conflict with the concept of reconciliation? Reconciliation is not an event. It is a process. We must also be aware of the context. We are not like SA which was already a nation which faced racial problems. Our problem is that of massive human rights violations. In this context, if we want to escape the culture of impunity, we need to rebuild a nation which respects human rights and which will ensure what happened under Portugese and Indonesian rule will not happen again. We need to promote respect for the rule of law. Bringing people to justice will build up respect for the rule of law and ensure human rights abuses do not occur again. Bringing people to court is also a part of reconciliation? In that it will strengthen the rule of law? Reconciliation is a process. CAVR is only one of the institutions that will ensure reconciliation. 8. Aside from CAVR, what other steps should Timor take before achieving reconciliation? We didn’t start from a perfect complete idea of reconciliation. The most important is that the reconciliation process has started. Along the way we will learn more about the concept as well as how to implement it and how to further perfect it as a concept. But what is certain is that reconciliation cannot occur without truth and justice. 9. In your opinion will reconciliation processes differ from nation to nation? Yes. For example our context differs from South Africa. Our community differs also from South Africa. 55 10. In your experience as Commissioner, what are the victims response to the reconciliation hearings being carried out? Are they willing to forgive perpetrators? There is a common understanding among Timorese. That what occurred was due to political conflict. Those who committed crimes did not have personal vendettas but where swept up by the political conflict. We are small people. It was the political factors at play that caused all this. For less serious crimes brought before reconciliation hearings, the responses of victims are similar. Why should we bring this to court? We were all small insignificant people in the political conflict. A conflict caused by political elites. You see people crying, forgiving each other. The important thing to remember is that CAVR does not force individuals to forgive. Everything is voluntary, from the very beginning when the deponent gives his statement. The deponent usually does this because hes ostracized by the community and just wants to be accepted again. 11. Are there cases where the victims are unwilling to forgive the perpetrators? Very very little. Only one or two cases. 12. What does the CAVR do in such cases? We record it down and this does not prevent them from being prosecuted their less serious crimes in the future. Many have criticized us for forcing victims to forgive but we never do that. Our role is only to explain the aim of reconciliation. We facilitate the process. We ask the victims if they are willing to forgive. 13. What is the most important impact your job has had in your life? That is a difficult question. It is so broad and there is so much that has happened that has impacted me. I think it would be complexity of reconciliation. As it involves so many factors. It involves emotions, social, political problems, economic. I saw economic cause they are those who have lost everything in the war. And they may be willing to forgive but this loss weighs heavily on them. Women who lose their husbands are left to fend for themselves. People whose homes were burnt face the perpetrators and are reminded of the loss of their homes. They want to forgive, but all these losses affect them. 56 14. Are there cases where perpetrators were ordered to compensate the victims? Yes there are but generally only a confession is required from the perpetrators. It is amazing how big-hearted Timorese are. We have lost our love ones, our homes but this was all for independence. This is how people understand it. All this was caused by political factors outside our control. All they require is a confession. Sometimes I am so touched by the big-heartedness of Timorese. They are satisfied, that though they may have lost everything, they are independent. We have victim healing sessions through art, through expression. And when you see the arts and crafts that they produce you are touched. 57 APPENDIX 3 Interview with Ben Larkin, dated 29/12/03 1. Could you describe the mechanics of the CAVR at the district level? At every district we have two designated members of staff and what they do is go out, go from village to village and talk about the work of the commission. Specifically truth-seeking and the reconciliation services that we offer, explaining the differences between the two, and invite individuals to approach us. As much as possible we would like people to come to us as we are not allowed to solicit statements from people. Usually after that there will be a pause as people are quite reluctant to come out into the open and talk about the past. Our staff will also make contact with the village chiefs, and explain to them what kind of service we are offering, and with the chiefs’ knowledge of the population, they may approach the individuals that to their knowledge should participate. What happens then is when someone comes forward to us to make a statement, we take a full written statement, at that point that would be forwarded to the office in Dili, to be summarised and the statement would be passed to Serious Crimes, where it gets translated and gets reviewed by the prosecutor in charge of that geographical area. Upon receiving a letter from Serious Crimes giving us the go ahead, we then proceed with the CRP. In this way we make sure that the applicant has not been involved in any crime categorized as serious. 2. How many perpetrators are involved during one hearing? In varies. Sometimes there is only one person sometimes 30 or 40. It depends on a variety of factors. For example do we manage to get all the statements approved on time, on how many people in the community are actually willing to come forward as sometimes there is only one person in that entire community. As much as possible we try to organize the individuals involved within group affiliations. But we would never do a really big hearing just to save time. 3. What do you mean by group affiliation? It may be that all were involved in one particular incident. It may also mean that they were all part of the same militia group. Usually when the leader of the militia group approaches us, members will follow his action. 58 4. From your personal observations, how has the community responded to these reconciliation hearings? On the whole it has been pretty positive. Its really encouraging to see how well they are receiving it. When we were interviewing individuals such as community observers and panel members, for a recent evaluation report, there was a very positive response. Very little criticism. Perpetrators interviewed all felt that they had said what they had to say. And after the hearing they were able to walk around freely. 5. Who are you referring to when you mentioned community observers and panel members? After getting the go ahead from Serious Crimes, CAVR staff will go to community leaders and set up a panel for the reconciliation hearing. This panel will consist of one of the Regional Commissioners for that area, a woman and the other three members are more flexible. Normally it might be a representative of the youth, the church or a liurai (one of the village elders). Anyone who is generally well-respected within the community. Community observers refer to anyone from the community who has attended the hearing. So we got feedback not only from those who were actively involved but also from those who were passively watching the hearing. 6. How would you describe the turn-outs during these hearings? It depends. If you are talking about the towns and cities the sense of community isn’t that strong as many are migrants from other areas therefore the participation and turn out is smaller. In the more remote, smaller villages the sense of community is much stronger and the turn outs are incredible as everyone knows who everyone else is. 59 7. What are the usual responses of victims at these hearings? What do they ask for in the CRAs? It varies a lot. We get victims who just say an apology is enough. At the hearing, the panel calls the victim and asks them what they need from the perpetrator. And then they call the perpetrator separately and tells him what the victim needs from him. This is all done in public but usually the panel calls the victim and perpetrator forward so that not everyone is standing over and listening to you as this may be intimidating. Maybe you can call this semiprivate. There is usually negotiation and mediation carried out by the panel. For example the victim may need three buffalo to feel satisfied but the perpetrator may then say he has just returned from West Timor and has nothing but the clothes that he is wearing. In general the victims have been very open about forgiving. Its very surprising. When I first came, I was initially suspicious and wondered if these CRAs were being steered by our staff. But when I talked to the victims one on one, asking them what was the key factor to achieving reconciliation and gaining forgiveness, they would say it was the perpetrator’s confession. If the confession was good and honest, and you must remember that in these closeknit communities, everyone knows everything about everyone else, so they are able to judge if your confession is true and honest. 8. What about reports whereby perpetrators, upon their return, were already subject to beatings or ostracization even before the hearings. In this sense rough justice was already meted out. No doubt these incidents happened. Even after perpetrators are beaten up, that does not mean that they are free to go out without ostracization after that. Many perpetrators told me about how when they went out, no one would make eye contact with them. In that sense that’s punishment in Timorese society where everyone is always in constant contact with one another, from the morning everyone is outside their front door, people speak very casually and informally to one another, and it’s a very social way of life when one is a member of that community. So when one is ostracized, it limits their ability to move about, to take part in normal village activities. 9. Has there been actual complaints of rough justice to the CAVR by perpetrators? Yes. Sometimes during the hearings, positions even become reversed. For example a victim may say in 1999 you showed the militia where I was hiding and I was beaten by the militia. And the perpetrator may retort, yes but when I came back you and your friends beat me up, sold my house. And we have a situation where the victims also apologize for their actions. 60 10. Are such counter-accusations common? No not that common. When we talk to the perpetrators in preparation for their hearings, we tell them that the best thing to do is stand up and talk about what they did. 11. Could you describe the preparatory sessions you just mentioned? We run separate briefings prior to the hearing for victims, perpetrators and panel members. About two days beforehand, just to explain to them whats going to happen, to remove any doubts, fears or uncertainties. For the perpetrators, to give them some idea about what they might want to consider saying to facilitate reconciliation. Many of them want to say that they didn’t do that much, they also want to say who their bosses were, and what really went on to give their actions context for example they may say yes I burnt a house but all the houses were burnt. We agree that the context is important but we also emphasize that the importance is to talk about what you did. That people came to hear you talk about you and not you blame other people. 12. Could you talk a little about victim hearings? That’s run by a separate department. Every district has a team of twelve people. As I mentioned before two of them are reconciliation staff. Two of them will be victim support staff who together with the Regional Commissioner will organize the victims hearing. 13. Are victims generally willing to come out and talk about their experiences? Eg rape victims? From our experience, people generally are. Like when we did our first national hearing, it was a generalized victims hearing, one women had been kidnapped by militia, taken across the border, gang raped and now has a daughter who is a product of that rape. There were also other awful brutal testimonies from witnesses. We sent out all these invitations to victims at first and I was thinking that no one would ever respond as these are the most personal, private experiences. Almost everyone to whom we sent out an invitation in Dili accepted, came here and participated in the national hearing. 61 14. Can you contrast such willingness with the unwillingness of rape victims to confront their rapists in court, a problem reportedly faced at Serious Crimes? There is a difference in circumstances. In court the rape victim will have to testify in a courtroom possible in front of the accused. This does not happen at the national hearings. There is nothing like a legal procedure, all we are saying to the victims is whether they are willing to come out and share their stories. 15. From your personal experience, do you see the CAVR as a substitute or a good complement to Serious Crimes? From the response of people involved in the CAVR process, yes it is a good complement. We are talking about petty crimes here, that could go to court but what we are really doing here is using a traditional system of justice that has always existed. For every hearing we always have a group of elders come in to give their moral authority to the hearing and conduct several traditional ceremonies. There is one ceremony, the spreading of the big mat, symbolic of here at this moment we are laying out all the issues and we will all be open with each other. There may be sacrifices of animals, the sprinkling of coconut water, sharing of palm wine. There are different permutations but ceremonies that resonate with individual communities will be carried out. Due to such traditional justice systems already in place in the past, small crimes traditionally never made it to the formal justice system. They were all resolved by these traditional mechanisms. 16. Do you think the CAVR would have been a good substitute for dealing with Serious Crimes, given the receptiveness of the community eg rape victims being more willing to testify before the CAVR No I don’t think so. The sense of justice is still very strong. In CAVR sessions, victims are unburdening, hopefully to heal themselves through that process. But Ive heard people speak at these hearings and at the end they always ask what is the government going to do about these cases as we have not had justice yet. 62 17. What is the influence of Catholicism on the CAVR? This is symptomatic of Timorese culture. No one sees things separate. We have had hearings where the elder would first stand up and conduct a traditional ceremony and then the priest would stand up and talk about Catholic forgiveness and no one sees anything wrong with it. Ive been to hearings where the local priests have given amazing sermons on forgiveness that ties into the spirit of Catholicism. There is definitely influence by both tradition and Catholicism but its hard to separate them and say which influences which more. 18. What role does the panel play? Is it active or more as a mediator. It depends on the personalities involved. Normally it would consist of the priest, the district administrator and our own member of staff will make speeches before the hearing about reconciliation. Then after that, authority will be formally handed over to the panel. The panel members will then take the mike, and be given time to introduce themselves. But how active they are really depends on their personalities. Some are really active and our members of staff are able to just back off and let the panel handle the questioning. Else our members of staff will have to prompt them, asking if there is anything they want to ask. But our regional commissioner on the panel will usually be underpinning the process. 19. Who are the regional commissioners trained by? We have two regional commissioners per district, one in charge of truth-seeking and another of reconciliation activities. So staff at the commission will usually train them by sharing lessons they have learnt. We have informal procedural rules on how to conduct a hearing and we stress that the commissioners should familiarize themselves with those regulations. These regulations are based on principles laid out in the CAVR UNTAET regulation. However we recognize the necessity for flexibility in carrying out these hearings. For example sometimes it wouldn’t be appropriate to have a traditional ceremony. Therefore we make judgments on the ground based on local circumstances. 20. Is the CAVR driven mainly by international or local staff. I am the only international staff. As for my role, I mainly sit on the right hand side of Juvito, sharing ideas with him and discussing where we should be going. 50% of the time involves going out into the districts and working on the ground. 63 21. What was the role of international advisors in setting up and developing the CAVR? The ICTJ played a really important role in sharing their experiences. However there is a limit to how much we can apply lessons learnt elsewhere to Timor especially when it comes to how to carry out a reconciliation hearing. And the locals are really the best in knowing how to carrying out a reconciliation hearing as they are in tune with the local culture. 22. How long do the hearings normally last? About a day. Normally we start at 10 and end in the afternoon. Sometimes we had hearings that went on a second day. Because our main concern is to give everyone a chance to voice their opinions. 64 APPENDIX 4 Interview with Father Jovito, dated 4/1/2004 1. What was the origin of the CNRT? During the final CNRT congress, we made a final recommendation to have a truth commission. Though we were free at that time, we were still living in fear, with tensions between proindependence and pro-autonomy supporters, even within the proindependence group there were many factions. With these tensions we could not move into the future without knowing the truth, the truth and causes of all these tensions. 2. Why a commission rather than a court in dealing with these tensions? During UNAMET time the UN was trying to promote meetings between the Timorese leaders of resistence and the Indonesian authorities. However many people looked upon these meetings with suspicion. Though Xanana along with other UN representatives made many visits to the borders, the Indonesian authorities were still highly suspicious and reluctant to meet with Timorese leaders in Timor Leste as they feared they would be arrested for 1999 events. There were still much tension between the Indonesian and Timorese parties. Xanana, Ramos Horta and other Timorese leaders was considering amnesty to better Timor’s relationship with Indonesia. They wanted to forget the past and move into the future. 65 3. Who suggested the Serious Crimes Panels’ establishment? This was UNs initiative. The UN had a list of perpetrators of serious crimes whom they planned to arrest if the suspects were found within Timor’s borders. Many Indonesians whom we met were very worried about this list and often asked us whether their name was on this list. Xanana was also inspired by Mandela who visited him in jail in Indonesia. Many thought that the CAVR was a copy of the SATRC. Mandela advised Xanana to choose reconciliation as a way to move into the future. Though the political background in South Africa differed from Timor Leste’s the importance was for the people to understand the past, to understand the truth. To understand why their families, their relatives, their friends died. Many didn’t understand the causes of all these deaths. To many the past was “momok”. In public hearings, such as the recent political parties public hearing, people came out to explain what happened, the inter and intra party killings. The families of victims then understand the reason behind the killings, the tensions. The fundamental role of the commission is to help people understand the past. This should be brought about by pressure from the government or from the international community. But it should come from the people themselves. The commission merely facilitates this. People come forward themselves to confess, to explain and to accept the past. Perpetrators come forward with information that no one else knew about, confess publicly and the reasons behind their actions. This is an unburdening for the perpetrators. 4. Are the people satisfied with such confessions? Do they still show a need for traditional justice to be meted out? No. From the beginning till today, its been one year, people always say they want justice. They have no clear conception of what justice they want but they want the perpetrator to be punished and be put into jail. 66 5. If they do want to see the perpetrator jailed, does this mean they aren’t satisfied with reconciliation per se? In the beginning the commission faced much doubt from the public. No one believed that we could succeed in our aim. Even governmental members doubted us, stating publicly that we in the commission, being of a new generation, did not truly understand the nation’s history. But today they recognize the importance and success of the commission. I would not say we have been successful in “cleaning up” the entire nation’s problems. We are not “cleaners”. But we have started a process. Reconciliation is a long process, one that is dealing with people’s lives, one that is not easy. Some manage to accept the past in a short time, some cant. Some take many many years. Everytime they see the perpetrator walking free, holding high positions in the government, they feel anger. The commission has started a process, sowed a seed in the field 67 6. What is CAVR’s reconciliation based on? Is it on the Catholic faith or traditional custom? No its not Catholic faith. I see it more as a mix and interaction between the legal and traditional custom. The CAVR only deals with less serious crimes. We set up a panel that consists of the head of the village (the spiritual leader of the community-a position that has been passed down through lineage), the church leader, representative of the youth, women. There are about four or five people who will intervene the hearing. The commissioners are there only as observers. The victims and perpetrators sit face to face, the perpetrator confesses. If the victim does not accept the perpetrator’s story the victim will say “No. It did not happen that way. You better tell the truth!” then the perpetrator may say “Yes I forgot, it was like this…” So a clarification of the facts that occurred takes place. This process differs from situation to situation and from place to place. Each village and district reacts differently and has different traditions. The perpetrator committed the crime inside the community and due to the close-knit nature of the community, everyone knows the perpetrator and the entire community takes an active interest in the proceedings. They often question the perpetrator vigorously. In fact it sometimes seems like a courtroom inquiry. We try to avoid this as this is not a court. At the beginning of each hearing we stress that this is a hearing not a court. This is a story-telling, just tell the story. The aim of the hearing is the reintegration of the perpetrator into society. Without reintegration, the community becomes like a jail for the perpetrator. The perpetrator lives like an outsider, without any responsibilities or rights. Even if physical violence does not occur against him, psychological violence takes place. Children crowd around him taunting “militia militia!” 7. Are the victims willing confessions? to accept the perpetrator’s Yes. Yes. There are very few cases where there is no acceptance and no reconciliation. One or two cases after one year. Most victims come forward and say “it is enough. It Is enough. I suffered all this for the sake of independence. The perpetrator is himself a victim. Victim of the military structure, of militia. We should not victimize him another time. It is enough. I forgive.” It is amazing. This happens all over the country. 68 8. The victims do not even ask for any compensation from the perpetrator? No. 80%, 85% maybe even 90% of the cases result in reconciliation without anything being asked in return by the victims. Sometimes they ask the perpetrator to perform community service maybe for one month. And even then this is not common. The victim is willing to just forgive. The most important thing for the victims is the truth. Some perpetrators come with an unrepentant attitude, thinking he has not sinned, arrogant and boastful. The victims never accept their confessions. When perpetrators come in humility, accepting that they had committed wrong in the past, that they have come back and are willing to face up to their mistakes, the victims are very wiling to forgive. 9. Do you think if the perpetrators were confessing to serious crimes would the victims forgive so easily? The role of the CAVR is not justice. The CAVR is in charge of getting the truth. Justice is the responsibility of the government. 10. How do you view the interaction between the CAVR and SCU? Do you think the CAVR would ever work for Serious Crimes? No. I accept the way the CAVR and SCU are working now. Serious crimes are beyond our competence. To implement the rule of law, people guilty of such crimes should be punished. Since the beginning of the CAVR we were conscious of our role to find the truth to aid reconciliation. But reconciliation does not equate to justice. Justice is justice. Institutional justice belongs to the judicial sector. Reconciliation belongs to the people. The CAVR however embraces the notion of reconciliation based on justice. For example on the 27th of Dec I went to Suai. There was a victims hearing. 5 victims came to give their testimonies. One of the testimonies concerned a man killed by three militia members, one of them currently attending the police academy and two others holding government jobs. The victim said “it’s a joke. It’s a joke. In the past they used weapons to kill people and now they are still carrying weapons” I told everyone there “We have a way to solve this problem. Justice is justice” After discussion with the commission president and we decided to take the victim’s statement and make a recommendation to the Serious Crimes Unit. We take it very seriously. In this case I told the police commissioner about this case and we took his statement. This had to be done quickly cause the next day the perpetrator was going to graduate from the police academy. After submitting the letter, up to today, he has not graduated. 69 11. Are there many cases like this? Not so many. When statements made publicly reveal the potential serious crimes we will definitely pursue justice. But if the statements are confidential, we deal with these statements only in our final recommendations. 12. Are there cases where CRAs are not reached? If none is reached it is considered not immune from prosecution. Yes there are a few cases like this. 13. Are there cases where the CRAs are breached? They do it. Community service is usually three times a week. Not everyday. So they do it. Sometimes depending on the injury suffered by the victim, traditional payment to restore the relationship is required. For example in Alas, there was a perpetrator who spoke very insulting words to the woman, mentioning her genitals. This was something that was considered very shameful in their community. The victim expressed her shame using traditional language. She said she was now “walking bare without any clothes”. The perpetrator had to give something to her to restore her dignity. In that case he had to give ties. The compensation and reconciliation depends on the villages particular traditions and customs. 14. Do the CRPs resemble any form of traditional justice utilized by the people during normal times? Not in its exact form. Usually domestic and familial issues are solved by the “traditional court” or something that resembles that. Its not as formal as the CRPs. 15. What is your role in the commission exactly? I am the vice-president. The commission is divided into several parts. Each commissioner takes two districts. Me am in charge of Alieu and Suai. We must attend the hearings at these districts. The victim hearings are separate from the CRPs. The CRPs are led by the regional commissioner but the victim hearings are led by the national commissioners. During the victim hearings, the community does not ask questions and the national commissioners may ask certain clarifying questions. The CRPs are open to the community’s participation after the perpetrator and victims have their say. 70 16. What do the communities ask during the CRPs? They don’t usually ask anything. They just go “You did this! You did this!” The questions they ask are “At that time where were you? You burnt this house didn’t you? I saw you standing there. You came with this other men. What really happened? Why this man or woman disappeared? Why have we not found them up until now?” That’s why the community accepts the perpetrator totally after he has confessed the truth and gone through the process. Because sometimes the perpetrators committed serious crimes but after accusations the perpetrator finally breaks down and confesses. Then people respond “Yes you should talk like this. You cannot hide it again! We wont listen. We don’t want to punish you but you must tell the truth” And after all that everything is fine. He is able to reintegrate back into the committee. 17. Do you think the CAVR’s reconciliation methods are particular to Timor or can it be a model for other countries? In the beginning we had no real concept of reconciliation. After the swearing-in ceremony we had a workshop at Maubara and we were really worried cause we didn’t know what to do. We had help from international consultants. Paul Fanseil, a member of the SATRC. Paul Seals, a member of the Guantemala TRC. Priscilla Hayner. As well as our international advisors such as Pat Walsh and Pat Burgess. 18. What was the role of international personnel during that time? It was merely advisory. The commissioners would consider their suggestions within the context of the community as a whole as well as the districts and villages in particular. Because the international personnel don’t really know the background and tradition of the community. It is the local commissioners who really know the background and the different behaviours of different peoples. Mumbai people, Bunak people, Makasai people, Atuni people. They way they act, speak, think and solve problems are all different. The reconciliation process had to be tailored to meet the peoples needs. What should be ultimately copied from CAVR we leave it to the international community. The most important is to respect the local culture and to let the people truly achieve reconciliation the way they want it to be achieved. In that way they will truly have a sense of ownership over the process. Else it will be imposed and people never really accept it. 71 19. Do you feel that the Serious Crimes Panel was imposed? No. I think it was necessary. Because we need to punish those who commit really serious crimes. 20. Do you think then there is a limit to what should be left to the local culture to decide on? Yes. Xanana asked Sergio many times to cancel the arrest warrants of perpetrators. He said that Timorese people are gentle and they will come back to Timor willingly if they are not forced or under pressure. If they feel there is something imposed upon them they will not come though they may want to. But the UN was very firm saying that this is international law. Xanana tried to argue that the Timorese case was specific and that the Timorese would come willingly as long as they were not forced. Xanana wanted to solve the problems of the borders. He was worried that if the militia men remained at the borders, afraid to enter, without anything, they may resort to violence again. (break) We work in each sub-district for three months. At the end of which we hold a CRP and a victims hearing. And when members of the community who have not given statements see the positive responses of the community to these hearings, they approach us, telling us they too want to submit statements. And we have to tell them to go to Dili as we have very limited time to achieve our mandate. We have only two years with our agreed extension of 6 months (parliamentary approval). Which after that I will decline if they want to extend it further. I myself need to get on with my life. Sometimes after these hearings, we come back with all these hurts and burdens in our heart. Carrying with us all the images of peoples’ sufferings and it is very hard. It is not easy to lead the hearings. And you cry without knowing why during these hearings. And you see everyone else in the community weeping. Sometimes its good also, to cry and let out all these tensions and feelings. The victim does not feel alone. The community knows and stands with the victims in solidarity. Before that the victim may have felt alone. After testifying, the victim’s problem becomes that of the entire the community and becomes part of the community’s story, the nation’s history. 72 21. How many deponents are there usually in one CRP? It varies from community to community and on the success of the socialization process carried out by the commission members before the hearings. Before the hearings the commission members explain to the villagers the aim of truth-seeking and reconciliation. Sometimes people do not believe that the commission hearings will indeed result in reintegration into the society. And after seeing the success of the hearings with their own eyes, they come to us and ask to submit their own statements for consideration. The problem is our mandate. From Jan 4 we will stop taking statements from deponents as from March all CRPs will stop and we will start drafting our final report till October. We hope to complete our big task by October. Goldstone is here to help us plan the drafting of the report. All the commissioner are preparing themselves to read all the statements. 1600 statements. It is a huge job. 22. In general how many hearings are carried out? As an estimate It depends also on the cooperation between the SCU and the CAVR. Sometimes there may be delays as we need to wait for the response of the SCU. In general one hearing will have 10 deponents? It depends. Sometimes 10. Sometimes 16. Sometimes 1 or 2 only. All carried out in one day. There are many hearings to be carried out from Jan to March. 23. Reconciliation has been touted by various commissions in different countries. Does Timor Leste’s notion differ? Yes. It all depends on the background and context of the countries’ conflict. In SA it was a racial conflict. Here it was between brothers, involving the military, the militia, the international community. Do you plan to involve the international community? Yes we plan to have a hearing on international actors. We have no agreements signed but we plan to invite individuals who know the background of the conflict and will be able to give a detailed account of different countries involvement. For example in the last hearing James Dunn revealed Australia’s complicity and even apologised for it. For example we intend to invite Limus Peres, a Portugese general who was involved in the decolonisation process in 1975 but failed. He wrote books of this, of the Portugese’s involvement. 73 24. Do you think you will face opposition from the Timorese government? This is the strategy of weak people who need to balance conflicting interests. We want a good relationship with Indonesia. This does not mean we ignore the crimes of Indonesia against Timor. However we also need to recognize that whether we like it or not, Timor needs Indonesia. Geopolitically, economically and socially. We are physically next to Indonesia and the border is a big problem for us. We don’t want the border area to end up like Gaza Strip. The problem is that we are economically weak to rebuild our country. We need a good relationship with Indonesia but we also want justice. But we need to do it in our own way. And one way is to talk about Indonesia’s involvement during the CAVR’s hearing. The CAVR is an independent body, separate from the government. When Jeff Robinson talked at the hearing of the massacres, he mentioned that in the past Timor dreamed of independence, and we made it a reality. Even now an international tribunal may be a dream, but I believe if we work hard we can make that dream become a reality. But it is a dream. It is a dream. 25. When you talk to international actors coming to talk about their government’s involvement. These will be people sympathetic to Timor and not really government officials coming to admit their guilt right? Yes we probably will manage to get ones who are sympathetic but we are not only looking for that. We want people who really know the situation of Timor, the background of Timor. We wont invite people just to please the audience. We want people who really know the historical facts, who know the details about Timor’s past. People who were members of international governments at that time and knew the policies of their government. For example America, Australia and Portugal were all involved for 24 years and knew the details of the conflict. Hearings are merely one of our methods. Some may not be able to come but they can make submissions to the commission and we keep it confidential till the final report. We also have surveys, we work with NGOs in Indonesia who can contribute knowledge about Indonesia’s governmental structure and policy. 74 26. What are the aims of inquiry? We have not had inquiries yet. These are supposed to be confidential. Some individuals prefer to submit statements confidentially, not at public hearings. We respect the confidentiality and only reveal it in our final report. But the final report will be made public? Yes. But the extent of publicity depends on the government as we will eventually submit our report to the president, who will submit it to the government. We will also give it to the UN, to international donors and to the Security Council. The CAVR didn’t receive funding from the government. But from donors. Now the idea of an international truth commission is becoming popular, instead of amnesty. Amnesty collects facts, but it doesn’t solve the problem. Sergio also spoke about the idea of an international truth commission for international problems. So we don’t need to resort to Interpol but to the commission. 27. Just briefly what do you think Timorese concept of reconciliation? It is not clear. It differs from level to level. For politicians its different, for the ordinary people its different. I think for the commission we look at it as a process, that deals with peoples lives. So it depends on the people. The victims determine the short or long term process of reconciliation as no one can force them to forgive. But forgiving and forgetting are two different things. Some say they can forgive but cant forget. Genuine confessions are very important. The feeling of humanity within victims instinctively tell them if the perpetrator is genuine if his confession or if hes lying. Everyone is very sensitive to this. If they sense the perpetrator is lying they will feel dissatisfied with the hearing. The commission feels that reconciliation is a long process. Our conflict occurred over 24 years. There was a case in Manatutu. He didn’t go through IOM or UNHCR. He came back bringing everything. When he arrived, a group of youth came with knives and weapons, wanting to punish him. When he saw them he immediately said “please give me some time to say something. Yes I was here as a militia man. I burnt houses, I threatened people but I didn’t kill anyone. Now I am here to accept all responsibility. I burnt everything, you lost everything. Here is everything I have if you want to burn it please.” After that the youth calmed down, approached him and hugged him. After that the youth protected the man from anyone else. Reconciliation occurred independent from the CAVR. Now the individual is a policeman and is accepted in Manatutu. When you genuinely confess there is reconciliation. So after one year of experience I think to sum it up is that reconciliation is possible with a genuine confession. 75 76 APPENDIX 5 Interview with Amada, dated 5/1/04 1. How was Yayasan Hak first established? It was established in 1996 to assist pro-independent supporters who were brought to trial under the Indonesian regime. We provided legal assistance to them. 2. What are the activities that Yayasan Hak carries out in relation to Timor Leste’s transitional justice? We have carried out several community reconciliation hearings. These are separate from those carried out by the CAVR. These have concerned serious crimes, involving militia killings. We have carried out two such hearings in Same and Ainaro. These are requested by the victims’ families and the perpetrators. The perpetrators come forward as upon their return from West Timor, they are subject to much ostracism and persecution by their communities. Usually students will help us out in the preparation of these hearings. The hearings take place over two days. On the first day, we invite speakers from Serious Crimes, CAVR and the judiciary to talk about the transitional justice mechanisms currently in place in Timor. On the second day, the actual reconciliation hearing takes place. First the victims families will talk about their feelings. Then the perpetrators will tell their side of the story. At the end of it all we ask the victim’s family what they need from the perpetrators in order to accept them into the community again. Their response is that they can accept the perpetrators back into society but they will have to be held accountable for their wrongs at court. 3. What other activities? We also hold community discussions. We carry out human rights and transitional justice educational programmes. We invite prosecutors from Serious Crimes and human rights lawyers from our organization. These are public hearings held in various kapubatens or districts like Ainaro. We receive information from the staff in our various branches that a particular district requires such hearings. Most of these requests originate from the West region. Timor is divided into East, Central and West. This is because most atrocities occurred in the West region of Timor, Same, Ainaro, Maliana. Each time you enter a village located within the West region, without fail there have been those who were killed by militia. 77 4. What are the reactions and concerns of victims during these community discussions? There are two main concerns. First they ask for justice through the formal legal system. Second they ask for rehabilitation. Some have had their hands cut off, their ears cut off. Some have lost their husbands and have several young children to feed. Most face health, economic and psychological problems. 5. How many community discussions have been held? Last year we held more than 100 community discussions. 6. Has your programmes? organization undertaken any rehabilitation We mainly provide support services. We help to organize victim support groups. Aside from that we assist them in seeking justice. These groups exist in every district. 7. Does Yayasan Hak have a presence in every district? We have three branches, East (Maubixi) West (Maliana) and Central (Baucau). The victims groups that I spoke off are independent of our organization. There are many such groups in Timor. There are widows groups, victims groups. 8. Whose initiatives are these? Many NGOs. After 1999 we keep constant contacts with these groups. We provide advice and support to these groups. Our role is mainly to provide guidance. 9. Aside from these groups, are there other activities carried out by your organization to help the rehabilitation of victims? Yayasan is divided into several divisions. Policy advocacy, community empowerment and fact-finding. After every hearing or discussion, we at the policy advocacy division will conduct analysis and make recommendations. 78 10. Im really interested in the role played by NGOs in community education. Are there any other steps taken by Yayasan Hak to reach out to the public? We also publish newsletters and reports on the CAVR and SCP’s proceedings. 11. In your experience, do ordinary Timorese understand the transitional justice mechanism in place? It is difficult. The intellectuals in Timorese society do understand. But the majority of Timorese do not understand. They usually think the CAVR and SC are totally separate and do not meet. This is not true as both institutions have their separate mandates and the CAVR deals with reconciliation while the SC deals with Serious Crimes. People think that the CAVR avoids accountability and only SC seeks accountability. In fact the CAVR complements and assists the SC in seeking accountability for those who committed Serious Crimes. Secondly because the government supports the CAVR and stresses reconciliation, SC has been sidelined in the public sphere. There is a problem of political will. The government is torn between seeking accountability and its economic and pragmatic aims. But our organization has always taken the stand that serious crimes are international crimes and accountability should not be compromised. 12. Are Timorese dissatisfied with the amnesty meted out by the CAVR? Yes. This is because they misunderstand the CAVR. The government’s stress on reconciliation and amnesty have made many confused. Some are apathetic towards the CAVR as they think nothing can come out of it. They do not realize that serious crimes fall under the jurisdiction of the SCP. They want reconciliation but they also want accountability. Some, after attending CAVR’s public hearings, realize the role of the CAVR and say that they are prepared to give testimony before the SCP. They then realize that accountability does not end with reconciliation but that serious crimes will be dealt with by the SCP. 79 13. Am I right to say that because the government has been overtly stressing reconciliation and amnesty, ordinary Timorese fall under the false impression that perpetrators will not be brought to justice? There are two matters of confusion. That is one. Because in reality the CAVR does not work that way. The political leaders’ stress on reconciliation and amnesty make people apathetic. The CAVR only carries out truth and fact-finding. It is not a tribunal. Perpetrators still have to be brought before the SCP for Serious crimes. Another source of confusion is that of amnesty. Due to the government’s stress on that people think that perpetrators of serious crimes will be given amnesty also and become even more confused with the roles of the CAVR and SCP. 14. What is Yayasan Hak’s stand on transistional justice? We understand the importance and support the CAVR’s work. However we hope that in their final report they will stress the importance of bringing perpetrators of serious crimes to justice. We hope that the Timorese government will have the political will to bring these perpetrators to justice. There is much difficulty because Timor is a small country and Indonesia is a big country. But these are serious crimes, international crimes and the international community should support the bringing to accountability of these perpetrators. 15. What is Yayasan Hak’s stand on the question of setting up an international tribunal? These are international crimes. The international community should also bear responsibility in setting up an international tribunal. This is not only a Timorese question. 80 16. Are the people confused with the amnesty offered for less serious crimes and formal justice meted out for serious crimes? In the beginning, during INTERFET times, Timorese thought that all crimes, house burning, chicken stealing should be punished. But after explanations they do realize it is impossible to try all crimes. Today Timorese also feel that their suffering was worth it for independence. They realize that everyone were victims in 1999. They can see it because those who were here giving orders are now still in Indonesia giving orders. So they know who were the ones truly responsible. In the beginning though Timorese just couldn’t accept it. The only dissatisfaction now is that the SCP has only tried militia and not been able to try the real master-minds of 1999’s atrocities. We see these master-minds still holding high positions in Indonesia, drinking beer. And this disturbs the Timorese people. They also have seen for themselves the bias of Indonesia’s ad hoc human rights court. 17. Are the Timorese aware of the ad hoc trials proceedings? We follow it, publish updates on it and also inform Timorese about the ad hoc trial during our community discussions. 18. What do you see the role of NGOs in Timor in the future? The government has limited resources therefore NGOs can play an important role in reaching out to the people and dealing with issues that the government cant deal with. There is currently a regulation being debated in parliament regarding the administration of NGOs dealing with the taxation and administration of NGOs. In the beginning, after 1999, there were many international donors who supported Timorese NGOs. Now there is a reduction of such foreign aid and you can see NGOs struggling and closing down. We are funded by a Dutch foundation. 81 APPENDIX 6 Interview with Professor Hikmahanto, dated 24/12/03 1. Could you talk a little about your involvement in the ad hoc human rights court? I was asked to give by defendant counsel to give an expert witness’ testimony on command responsibility at international law. And I was willing to do it because I thought it was a forum to try to rectify the mistake that Indonesians have on the perception on command responsibility. I was asked to come to the court based on my knowledge on command responsibility. 2. What is the common misperception? People think that command responsibility is the responsibility born by the commander. For example if there is something wrong the person responsible is the commander as he has the quote unquote responsibility over his subordinates. In my opinion this is wrong because if the subordinates commit human rights abuses then the question is whether the commander knew about this. But under the Indonesian concept, the commander is automatically responsible for anything wrong his subordinates commit. Commander has to assume responsibility. 3. Was there effective command responsibility exercised? No I don’t think so. I don’t know why the prosecutor used Art 42 of Law 36. but that was a mistake. It is difficult to prove because first you need to know if the subordinate did something wrong and second if the commander had effective control. In my opinion if you are charging someone based on crime against humanity then you need to distinguish between those who are directly committing it and those who are masterminding it which you pursue under command responsibility. But if you look at the constitution, they base on Art 7, 9 and then Art 42, thinking that this can be used because the accused have the command. 4. Isnt one component of command responsibility that even if you didn’t know you should have known you will be held responsible? I don’t think so because in the Japanese case, you can be charged if you should have known. But the prosecutor didn’t argue that. It was just based on whether they had knowledge of any abuses of human rights. 82 5. If the prosecutor had run that argument that they should have known, do you think they would have succeeded? Again its very difficult because in my opinion, it is two different concepts. If you look at Soares, Silaen they have been made as scapegoats. Because someone has to be responsible and the question is who. If you look at presidential decree number 96 its not for East Timor entirely, it says its for Dili, Suai and Liquica. So from my perspective, the East Timor case is meant to appease pressure from outside it doesn’t really seek justice. It focuses on these districts and doesn’t focus on those who are really masterminding it in the central government. 6. In your opinion those who were charged were not those who were really masterminding it? Yes. 7. Even if they weren’t the ones who were masterminding it, but they had control over the troupes and they knew these atrocities were committed. Don’t you think they should have some responsibility to stop their troupes? I agree with that but the question is whether the chief of police has effective control over these troupes. The prosecutors could not substantiate an effective chain of command to the accused. In my opinion the effective control was held on a higher level, not the chief of police, but reaching much higher. Unless it is carried out by for example the Dili chief of police instead of the whole of East Timor, its just Dili, if this chief of police of Dili was committing human rights abuses, then the chief of police of East Timor can be prosecuted. 8. Are there actually two problems. Because no one knows which groups are controlled by who as well as a problem with formal vs informal chain of command. Yes. Because in 1999 the Polri was still within TNI and Polri had to report to TNI. 9. How did the prosecutor overcome this problem in proving who was under the control of who? That was the problem with the case. The prosecutor did not manage to establish which group was under the control of who. 83 10. In the Nuremberg and Tokyo trials would you agree it was easier to establish the chain of command as these were official troupes being used. But in Timor militia were used which made it harder? Yes. Because from what I read from documents. The militia, military and Kopassus were all there and no one really knows who did what in that situation. In that sense for the Prosecutor to pursue based on Art 42 it is very difficult 11. What strategy do you think the prosecutor should have adopted? They should have tried to pinpoint the mastermind (direct). 12. Do you think they refrained from doing so for political reasons? Yes. At one point UNTAET asked Indon to extradite Wiranto. Wiranto said he had talked to the prosecutor and he had done nothing wrong. I wrote a paper saying that Wiranto had no responsibility but because he said this in front of the press, if he said it in the court of law that would have legal bearings. But he would need to submit to the court process. Problem is the prosecutors did not want to prosecute Wiranto my argument was that Wiranto was being denied the chance to say things in front of the court. My suggestion at that time was for the prosecutor to prosecute Wiranto and give him a chance to defend himself. If you are talking about international crimes, you can be subject to universal jurisdiction wherever you go. 13. International opinion has condemned the ad hoc trials. Do you support the trials? I agree that the trials should be conducted nationally. Because it is very difficult for these people to be prosecuted in contrast with those in Yugoslavia or Rwanda where the governments collapsed. It was easier for them to hand people from previous regimes to international tribunals. In our situation, those responsible are either still in the government or have good relations with the political elite. If it was an international tribunal, I don’t think the Indonesian government would cooperate by sending these individuals to the international tribunal. The KPP-Ham report highlighted the responsibility of people like Wiranto but they were all not prosecuted. 84 14. Do you think the government would have supported any charges brought against these individuals? At that time I think yes because Gus Dur was the president. This is the political context. But when the prosecution was going on Gus Dur was replaced by Megawati who has close relations with the military therefore she would not support the prosecution of Wiranto. 15. If there is no political will to ensure the success of national trials, do you think its better to have an international trial? Indonesian government and public will not agree with that. If Timor was still part of Indonesia, these individuals would be heroes. And people in Indonesia do not want these individual tried. A majority of Indonesians definitely think they were only performing their duty towards Indonesia. 16. What has been the public’s response towards the ad hoc trials? They are pretty nonchalant towards it. This attitude is different from the Tanjung Periuk case which is domestic. In my opinion, when Habibie recommended that the Timor trials be carried out it created the impression that Indonesia was bowing to international pressure and therefore decided to have another human rights trial. 17. Will the human rights court continue to prosecute cases unrelated to Timor? If you look at law 26 it refers to the human rights court. Its states that for past human rights abuses an ad hoc court will be set up. But if the human rights abuse was committed after the law was passed it would fall under the jurisdiction of the human rights court. Because this was something that happened in the past, the DPR would suggest which ones need to be examined, the president will issue a presidential decree establishing the court. In the future if a past human rights abuse is examined, then another ad hoc tribunal will have to be set up. If it is a human rights abuse that occurred after the law was past, it would fall under the jurisdiction of the general court. The police and prosecutors will determine which cases go to court. 85 18. Do you think the prosecutors, being under the State apparatus, will be unwilling to recommend government officials for prosecution? There is a conflict of interest. Due to this what happens is that the prosecutor’s will choose to prosecute someone who is high enough but not the one ultimately responsible. They acted the same way in the context of the ad hoc court, choosing to indict people like Silaen and Soares. If the prosecutors would do their jobs professionally, there would be no conflict of interest. We see the problem even in the context of military tribunals. Military prosecutors are usually unwilling to prosecute individuals that are of higher ranking than them. 19. What do you think is the best way to deal with government officials who committed past human rights abuses who are still in power? It is hard to categorize what is a human rights violation. What seemed like a violation today, was not yesterday as there was no law prohibiting it. However if these violations are to be tried, the prosecutor needs to be very independent. That’s why I suggested that we need to have an ad hoc prosecutor. Not individuals who have just retired from the Attorney General’s office. Pick human rights activists. 20. What is your opinion on East Timor’s Serious Crimes Panel? There is a feeling that the court is not completely neutral due to the predominance of pro-Indonesian supporters who were prosecuted in contrast with pro-independence supporters who also committed atrocities. If you look at history, it has often been like this. Look at the Nuremberg and Tokyo trials. But if you look at the Vietnam war, the US was not required to stand trial. So the political context is very important. This has a powerful psychological impact. If Timor was still part of Indonesia, there would not be any trials. If the Germans and Japanese won the war, there would be no Nuremberg or Tokyo trials. 21. Do you think the ICC will ameliorate most of the problems? Cooperation is still needed between the ICC and the government. Look at the example of the US. That shows us how international law is subject to much political influences. Even Yugoslavia handed over Milosevic because they needed international aid. This occurred in Indonesia as well. The US and EU wanted this prosecution else they would withdraw aid. 86 22. Do you think the solution to past crimes should be truth and reconciliation commission? Indonesia is trying to pass that law. It is drafted by Elsam and we hope that it will be debated in parliament. I suppose that is one answer. If you look at the Timor and Tanjung Periuk trials, it will be very difficult, unless you have a set of individuals in charge who are very independent, maybe internationals. 23. Introducing the notion of reconciliation is very different from our everyday notion of justice. Do you think the victims will be satisfied? I hope the victims will be. Because these individuals are usually powerful people, capable of employing very good lawyers. The victim needs to understand this perspective, that the prosecutor’s own resources aren’t that good. They aren’t that well funded and usually are no match for private lawyers. 24. If all was equal, would trials or reconciliation be better? Indonesian legal culture is very different. There are a lot problems with bribery, corruption. The Tanjung Periuk court is trying to cope with that. For example they are introducing ad hoc judges to deal with corruption. These judges are usually academicians, and even then they have problem attracting academicians and lawyers to serve as ad hoc judges as the pay is very poor. Of course sometimes the judges are pressured. Sometimes its by the political elites but recently it has changed in the post-Suharto era. Judges are not afraid of the NGOs, the media. That has become a problem of its own as this has affected the impartiality of the judges. If they acquit an unpopular defendant then they will be accused by the NGOs who have presumed the accused guilty. I am a lawyer and sometimes lawyers tend to say that we need to pursue things through law instead of reconciliation. But we need to judge things according to the context. For Silaen we had a letter from Belo asking us not to try him as Silaen had helped the Timorese. For Soares we had a letter from Gusmao. In the Damiri case, the prosecutor himself wanted Damiri acquitted. 87 88 APPENDIX 7 Interview with Essa Fassal, dated 2/1/04 1. I understand you were involved in the drafting of Reg 2000/15 and Reg 2000/16. Could you talk about how the SCP came about? As Xanana’s original idea was that of amnesty I do not know about Xanana’s vision, but Security Council Resolution 1272, which I also participated in drafting. 1272 required the UN to put in place mechanisms that ensure those responsible for the crimes committed to be brought to justice. Therefore there was an understanding that there would be at least efforts undertaken to pursue justice. What model that was to take was not defined by the Security Council. But considering that the mandate was given to the UNTAET mission clearly the Security Council had no intention of setting up an international tribunal. Even at that time the Security Council was becoming frustrated with international tribunals. They were too expensive, too administratively elaborate and took too much time to put together. It was then obvious from 1272 that UNTAET was to establish its own mechanism which would not involve an international tribunal. It would also not involve a truth and reconciliation commission as that would go against 1272 that required perpetrators to be brought to justice. Therefore UNTAET drafted Reg 15. If you look at Reg 3 it mentions that SRSG would set up panels composed of international staff who would be responsible for trying perpetrators. That set the pace for Reg 15. 2. Do you think that didn’t go down too well with local leaders who were leaning more towards truth and reconciliation vs justice? That is not true. Reg 1 itself sets out how the Transitional Administrator is to exercise his authority and it requires extensive consultation between the Administrator and local Timorese leaders for the purpose of passing laws. All regulations were discussed with the National Consultative Committee which comprised of all the top Timorese leaders from Xanana, to Horta, to Akitiri. During meetings with the committee, the purpose, the intention of the regulations were explained, questions were asked. I did not appear before the Committee during the discussion of Reg 15 for the simple fact that the regulation was passed in haste. 89 3. What was the ICC’s influence on Reg 15? In terms of the definition of crimes it was based on the ICC. But the reason why we have separate provisions for murder, torture that are limited to 1999 was because in the situation of Timor, we anticipated the problem of proving war crimes (as there would be a problem of proving armed conflict, armed groups) and that the crimes committed by Falintil or pro-independence supporters may not fall under the categories of international crimes, therefore we needed to have murder, torture as separate provisions. But technically we have jurisdiction over international crimes as stated in the universal jurisdiction clause reaching back to the 24 years of occupation. 4. What about Reg 16? Some of the provisions were based on the ICC. But most of them were taken from procedures from civil law countries, mainly from Germany and Eastern Europe. Reg 16 was also drafted in haste. It is not easy to draft a criminal procedure code. The code itself anticipates the fact that it may be incomplete that’s why we have s 54 (amend) that provides for gaps in the code to be filled by resorting to first procedures of the Indonesian code of procedure. There is also another provision that allows us to turn to the procedures of the international tribunals. 5. How long did it take to draft these regulations? Less than a month for both regulations. Reg 16 took longer as it involved discussions. In common law systems we have drafting specialists while civil law systems do not have drafting specialists. That’s why the regulation’s drafting is much looser. You can see the style of drafting difference when you compare it with the legal aid regulation which was drafted completely by myself, from a common law tradition. 6. Would it be accurate to say that the internationals draft the regulations and then submit it to the NCC for their input? No. Internationals would draft these regulations. After they are discussed and finalized by the drafting group, it is sent to the Transitional Administrator who would submit them for discussion with the NCC, as at that time there was no cabinet. So we used to have public hearings whereby members of the public can sit in and ask questions. So the NCC was comprised of both internationals and locals. They would ask questions, suggest changes. After these hearings the Transitional Administrator in consultation with the NCC would decide to pass the regulation. 90 7. How long would these public hearings last? Sometimes a few days. Sometimes a day. Reg 30 took much longer. It took 30 days altogether to pass. For that it took very long as some provisions seemed to border on unconstitutionality. There were provisions which allowed for the prosecutor to ask for pre-trial detention for extended periods of time. But we were faced with the dilemma of releasing all accused and facing the problem of vigilante justice as the victims and their families would seek revenge. That’s why I came up with the validating provision which was retrospective. Looking at the provisions one may argue that they may be unconstitutional but in reality they are a pragmatic solution. 8. Are pre-trial detentions common? Yes. At that time it was pretty common. 9. I understand that in comparison to Rwanda, the courts here do not favour pre-trial detention. We have different procedures. In Rwanda, the ICTR’s rules of procedure are such that detention is the norm. Here detention is the exception. This is because the ICTR puts the burden of proof on the accused while at SCP the burden of proof is on the prosecutor. 10. Based on your experience as a prosecutor, what is the general attitude of accused persons? There are different kinds of accused persons. Some are very remorseful and generally Timorese don’t lie. So you have some to court and are willing to admit. You have others who make a partial admission. The majority of the people in view of the fact they realize that a total admission of guilt would result in their punishment, they will only make a partial admission. “Yes I was there. I shot him but I did not kill him. He was killed by other people I don’t know who” It is like any other jurisidiction except that in Timor we have more partial admissions. 11. Reg 15 and 16 envision a big role for victims. Are these rights exercised frequently eg s 12 (allowing victim to intervene in conditional release hearing) No. Victims are usually unaware of these rights. It is the prosecutor’s duty to inform them. But here the people are usually not so interested. If you are to inform a family in Zumalai that Miguel Mao is to come before the investigating judge to determine if he is detained or not. Ok they would like him to be detained but they usually do not have the time to travel to court. 91 12. What about s12.5? Is that exercised? No. The victim will have to know about these rights in order to exercise them. Generally the prosecution does not go out of its way to inform them. This is partly due to a lack of resources. 13. S 12.8 talks about reasonable steps to be taken to inform victims The investigators do try their best to inform the victims families. That’s why we have indictment meetings, press releases and the investigators try to meet their families. 14. Any civil cases filed by victims? Not that I know of. But there have been cases where accused persons take up suits against UNTAET or the government. For example Takeshi, a Japanese took out a claim against the government for unlawful detention. 15. Are witnesses generally willing to come forward? Yes generally. Some are afraid of retribution from the accused. Some are afraid as they are unfamiliar with court processes. 16. What victims protections programmes are in place? The regulations allow for protection orders to be put in place by the court. Witness protection has not been much of a problem. From our experience witnesses are generally not threatened because the situation is that of the victim and the community against a few perpetrators. But the prosecutor can make applications on s24 and ask for whatever protection measures it deems necessary, the court will evaluate this. Especially in rape victims we sometimes ask for witnesses be identified with acronyms instead of full names and any material which could potentially reveal these identities be not made available to the public and that the trial be held in camera. 17. Are there any steps taken to prepare witnesses? Generally witnesses have never appeared before the court. Its up to the prosecutor to prepare his or her witnesses. My team prepares witnesses before they are called. 18. S25 talks about a trust fund. Is there any in place? No. It is up to the government of Timor. Even when you look at the constitution there are many things yet to be done. Many laws yet to be passed. So I will be not surprised if this is conveniently forgotten. 92 19. What steps are taken to publicize hearings and trials? We do our best. We focus on results rather than the actual process. I would have thought that the court would make it a point to publish their proceedings but that has never happened. 20. How do you see the interaction between the TRC and SC? The interaction has been good. The TRC has two important responsibilities, the truth-seeking part and the reconciliation meetings being carried out. The truth-seeking part, the TRC has jurisdiction over any cases, serious or non-serious. But for the reconciliation meetings, they cannot facilitate one that deals with serious crimes. 21. Have there been cases whereby during the CRP, evidence of a serious crime emerges and the CRP had to be halted and the perpetrator’s statement referred to SC? You have to refer to Mark Wahlbridge. But I think chances of that happening are very slim. Because before the deponent can go for a CRP, his statement is sent to our office and we check on records to determine if the deponent has been involved in any serious crime. If he has we take jurisdiction over that case. We have exercised jurisdiction over 115 cases the last time I checked. 22. Have there been circumstances whereby due to lack of resources, despite a suspicion that the deponent has committed serious crimes, CRPs are allowed to proceed? No. That would be an abdication of the SC’s responsibility. We would not do that. But what happens is that there are two possible scenarios. One where the deponent admits to committing a serious crime. Two where the deponent admits to have participated in militia activities and did not make any admission to committing a serious crime. In the first scenario it will not be allowed to go for CRP and SC will exercise jurisdiction. In the second one, we have some discretion in how we exercise our jurisdiction. The person could go through a CRP for crimes that do not amount to serious crimes. But the CRA reached only covers those non-serious crimes. So it does not exempt him from being later prosecuted for serious crimes. 93 23. What are the major problems you have faced in your experience? Procedure. Sometimes there are loopholes and the prosecution and defence have to address the court on it. Furthermore the regulations say that the Indonesian Criminal Code and practise of international tribunals can be referred to but do not say which takes priority. But the regulations also state that the procedure must meet international standards so in my view the rules of international tribunals should take precedence. 24. Do you think there is a problem with establishing effective control of superiors over their surbordinates? Especially since this was an argument raised by Indonesian defence counsel for Silaen in his case at the Indonesian ad hoc human rights court? That even if they should have know, they could not have done anything as they didn’t have effective control? Lack of effective control is indeed contestable in the case of informal set ups. But in the case of a highly organized military, a defence like that will be quite curious. Also in Silaen’s case it depends on the charge. Command responsibility for what? That is the issue. If you charge him with omission, that he had a duty to act under the 5th May Agreement to ensure peace and order and the annexes to the May 5th Agreement places that responsibility on the police. Silaen was asked by Bishop Belo to come and prevent an attack but he didn’t act. The argument for me does not hold water. Silaen knew that members under his command participated by action or omission, he did not act to prevent them from doing so, he did not issue any directives, he did not punish anyone. At least in order to show he didn’t have effective command and control, he needs to show that he took actions to stop them but failed because he didn’t have effective command. 94 APPENDIX 8 Interview with Domingos Soares, dated 5/1/04 1. Could you talk a little about your involvement in the CNRT and the CAVR’s establishment? Reconciliation is needed as we have more than 20 years of conflict. It was first suggested in the CNRT and we started discussing a truth and reconciliation commission’s establishment among ourselves. Oleandina, Alves, Guterres were among those involved. However I see the reconciliation of East Timor in three steps. The first which we pursued was one with the international community through the Congress of Resistence set up in Portugal. The second was reconciliation within Timor Leste, among the political parties and leaders. The third has to occur among the people, that is why we set up the CAVR. 2. When was the CAVR idea first proposed publicly? During the CNRT’s Congress. From 20-30 August 2000. 3. Where was the origin of this idea? Was it inspired by Mandela? No. For me no. The reconciliation outside was necessary to develop relations with Portugal and the rest of the international community. Reconciliation on the inside was also necessary for the development of the country. The CNRT was suggested at the Congress and we started working on it. We had help from South African experts. Already in 1998-1999 we had started work on the CAVR. 4. So this was before the Congress in 2000? Yes. It was discussed within the CNRT and we had already started working on it before the Congress 2000. 95 5. Was the original model of CAVR one which proposed total amnesty? No not amnesty. It was based on dialogue and the truth. The first stage, we would have to receive others and accept them. The second stage we have to know the truth. As without truth there is no justice. Therefore not amnesty but justice. Amnesty is only given after reconciliation. But this amnesty is not to be given by the President but he has to ask the victims. The victims are the ones who are concerned. Forgiveness has to come from the victims. 6. The ordinary person perceives justice as punishment. But we are Catholic. We believe that true justice does not happen here on this earth. 7. Was the idea of reconciliation in the CAVR based on Catholic beliefs? It originates from the son leaving the house. The young son is the truth. The reconciliation of the older son and the young son. 8. When the idea of reconciliation was discussed in the CNRT? Did people support this because they believed in this Catholic notion of forgiveness? Yes. When we were discussing the possibility of names for the CAVR, during the transitional government, I supported the phrase truth and reconciliation. The conclusion lies in Gods hands. 9. Do you believe the reason that the CAVR has been so successful is because the majority of the population are Catholic? The CAVR’s job has been very difficult. But their success has been to bring both parties to the same table to talk about the problem. The first stage has already been a success. But the second stage is crucial, the truth-seeking stage. As we need justice. 96 10. Was the CAVR’s original intent was to cover perpetrators of serious crimes also? What was the reaction of the CNRT when the UN proposed the serious crimes? There is also a problem as perpetrators of serious crimes, if they are released. But I think it was wrong of the UN. They should have allowed the CAVR to deal with these perpetrators. I think the UN did so because of the situation as well as their disbelief in the CAVR. I think it should be for the people to decide how to bring perpetrators to justice. 11. Did local traditional justice systems have a role in influencing the acceptance of the concept of reconciliation? Which had a stronger influence? Catholic or traditional justice? The traditional forms of justice have been accepted by the Catholic church. Both are similar as both require the perpetrator to seek pardons. The traditional justice system is also based on dialogue, on confession. 12. During discussions at the CNRT, did people openly argue for reconciliation based on their Catholic faith? Or traditional notions of justice? Yes. The majority of people here are Catholic. On traditional notions of justice, they have similar notions of confession and penalties as the Catholic confession process. So these both processes are similar. In Catholicism, after confession the priest will order penance be paid. Something must be done to repair the harm. 13. Do you think the people have responded to reconciliation? Yes. I think the importance is to let the people choose the process which they want. If they want to go to a tribunal then let them go. If they want reconciliation then let them go. If they want to use the Church they should be able to. 97 APPENDIX 9 Interview with Sylvia & Nella, dated 2/1/04 1. Have you ever heard of the CAVR? Sylvia: Yes it is an institution that deals with reconciliation. It aims to build a nation that is harmonious and deals with issues of human rights and amnesty. 2. What do you understand from the term amnesty? It involves freedom being given to those who have committed crimes. 3. Have you all attended CAVR’s hearings? Nella: Yes I have been to a public hearing. It dealt with victims. I was not involved in it but I attended it. You can also follow the proceedings online. 4. Do many of your friends follow the hearings? Yes 5. What do you feel about giving amnesty to deponents? Doesn’t this differ from the ordinary person’s understanding of justice? Do the people still feel vengeance? Sylvia: Yes. Nella: The CAVR gives victims a chance to talk about their feelings, to get it out of their system. If someone commits a crime against another person it no longer is the responsibility of the CAVR. But the person has to go to court. 6. Were you here in 1999? Did you experience any crimes? Nella: I saw dead bodies. I did not see any actual killings. We were all in the hills. Sylvia: I saw them burning houses. House burning is in the CAVR’s jurisdiction. Sylvia: mine was burnt. 98 7. Will you be able to forgive? Sylvia: Though the CAVR’s aim is reconciliation and gives the chance to victims to talk about their feelings. We still feel that justice has to be done. The CAVR’s notion of justice is ..explanation given Sylvia: I feel that though they did it, behind them are the real culprits who were instigating them. 8. Do you feel it’s a better to bring them to court? Nella: The CAVR’s jurisdiction does not cover serious crimes. In reality, our small hearts will still be troubled I think. Though much will be healed by allowing stories to be told on both sides, on by the truth being revealed. For serious crimes we will not feel satisfied if it went through CAVR. 9. So you feel that the CAVR’s jurisdiction over less serious crimes enables amnesty to be accepted more easily? Nella: Actually I think that somehow deep inside we would still want the perpetrators tried and brought to justice. Sylvia: Yes I agree. 10. In Los Palos, your hometown, before 1999 would people resort to traditional or formal justice? Nella: In the past people would resort to traditional justice more. There are still those who resort to it but for more serious crimes today it is reported to the formal system. In the past even killings would be dealt with by traditional justice. But today it would be reported to the formal justice system 11. What about less serious crimes? Nella: I think most Timorese are stubborn. An eye for an eye a tooth for a tooth. Some are quite willing to forgive but most are stubborn. 99 12. What is your definition of reconciliation? Especially since both of you have mentioned that no matter what a part of you inside would still feel dissatisfied. Nella: We must give forgiveness among ourselves. But Timorese want justice as we have seen with our own eyes the crimes committed Sylvia: Yes Timorese want justice. 13. What about your peers? Nella: they understand the importance of reconciliation. But they also think that justice is required in accordance with the law. 00 APPENDIX 10 Interview with SCU Investigator, dated 31/12/03 1. What are some of the problems you have encountered in your job? One of the most common problems I have encountered is to locate witnesses and suspects. Many are no longer living at pre-war addresses. This is due to internal displacement caused by the war. Not only that. Due to the lack of communication and transport lines, sometimes we would travel there and find out that the witness was not home. These problems were particularly intensified during the planting season when we were faced not only with witnesses being not at home, but with sudden storms that would make travelling dangerous 2. Most suspects have been released on pre-trial detention. Do they face any problems once released into the community? Many of the suspects have also been subject to threats by villagers. I have not observed actual carrying out of these threats. Most pretrial-detention releases have been due to lack of evidence and for the need for further investigations. However the court has attached conditions onto these releases to minimize risks of repercussions against the victim eg. not to return to the place of the crime, to keep 20 km away from the place of crime. 3. What are the reactions of victims or the families of victims towards perpetrators whom you have interviewed in the course of your job? The interesting thing is how they react differently from victims or families of victims in non-transitional societies. Most of those whom I have interviewed are indeed very sad that the crime occurred. But they are also resigned, accepting and almost helpless. I think its due to the fact that they are used to being in a culture of violence. In isolated cases we get relatives of victims who are eager for justice and frustrated with the court process. These are normally those with a lack of education but not really. Because there was an individual with college education who came to the unit to complain about the slowness of the investigatory process. But this is usually due to a lack of familiarity and understanding about the formal justice system. After explaining to them the backlog of cases, the evidentiary requirements of the court and the limited resources that we face, they usually calm down and are able to see things from our perspective. 01 4. What are some of the evidentiary problems that you face? Because many crimes which were committed during the civil war occurred in a chaotic fashion, many witnesses base their statements on hearsay or are unable to remember events in the proper order. Sometimes they cant understand why their statements which are based on hearsay cant be used or have to be strengthened before being accepted by the court. This is again due to unfamiliarity with the workings of the formal justice system. Before any interviews, we are very careful to explain to the witness the necessity of having direct eyewitness evidence and the reason behind this. Despite the fact that most are hearsay evidence, due to the fact that the crime occurred within a community which is very closely-knit, we are usually able to collate many witness statements each with corroborate each other. Many witnesses also cannot remember the last names or spelling of the militia members names. In these cases we try to establish the true identity of suspects by comparing different witness statements. We may ask them other identifying aspects of the suspect eg who is he related to, and use this to establish his actual identity. 5. What is the general attitude of perpetrators during their interviews? Militia members we have interviewed usually acknowledge their crime. We are very careful as to advice them on their rights, especially their right to a lawyer, before interviewing them. Usually they refuse the right to a lawyer. These militia members, having returned to Timor Leste have usually reconciled themselves to the fact that they will have to take responsibility for their actions. Else they would have remained in West Timor. 6. What is the general attitude of witnesses? Are they wiling to speak up against perpetrators? Eg Rape victims Rape victims have been particularly reluctant to speak up. But that is largely due to the local culture. 02 7. How long does an investigation normally last? It can range from one to two weeks or to as long as six months. On the average its perhaps three months. This all depends on the number of victims, witnesses. In large massacres its particularly difficult as though it is considered as one event, it can occur over many areas, involving huge numbers of victims and witnesses. And sometimes in the chaos there are murders to which there are no witnesses but merely the discovery of the body. In these circumstances where we cant identify the direct perpetrator, we can still attach command responsibility to the militia commander in charge based on where the body was found. As the militia would usually be organized territorially even in their attack strategies. 03 [...]... includes crimes committed by prior regimes and not only crimes committed during conflict, both crimes share many important characteristics with the former One is the impossibility of resorting to law during the crimes commission thus giving rise to the need to address these crimes only after the regime change Treital begins her historical survey of post-conflict or transitional justice mechanisms with the. .. justice over criminal justice have stressed the richer moral dimensions of reconciliatory justice which requires forgiveness and a “change of heart” by all involved By emphasizing the moral dimensions of reconciliatory justice, proponents of reconciliatory justice portray it as morally superior to the dominant criminal justice model The benefits of reconciliatory justice have been couched in both religious... prison before they leave the island The community is required to do this so as to morally disassociate themselves from the crime that the prisoner has committed 44 Kant’s theory however fails to explain why the moral response to crime is punishment and not some other process such as reconciliation Theorists such as Klenig address this by arguing that the notion of criminal punishment as a response to wrongdoings... Rapporteur of the Commission of Human Rights on extrajudicial, summary or arbitrary executions, the Special Rapporteur of the Commission on the question of torture and the Special Rapporteur on violence against women, U.N GAOR, U.N.Doc A/54/60 at Para 65 55 Report of the Security Council Mission to East Timor and Indonesia (9-17 November 2000), U.N SCOR, U.N Doc S/2000/1105 (2000) at Para 29 56 Report... of East Timor: Report of the Secretary General, U.N GAOR, 53rd Sess., U.N Doc A/53/591 (1999) , Annex I, 1 [hereinafter known as the May 5 Agreements] 27 TAYLOR, supra note 5 at xii; In August 1999 a document was found in the Dili police department regarding “Operasi Remember Lorosae II” a plan for mass evacuation of Timorese to West Timor in the event independence was voted for, also found was an order... Report, Chapter 4 5.50 28 Id at xxvi-xxvii 4 D The UN’s administration of East Timor As the violence in East Timor escalated, the UN Security Council sent a delegation to Jakarta on 7 September 1999 to meet with the Indonesian government.29 On 12 September 1999, President Habibie was finally persuaded to agree to a UN peacekeeping force in East Timor. 30 On 21 September 1999 the International Force for... Report of the International Commission of Inquiry on East Timor to the Secretary General, U.N GAOR, U.N Doc A/54/726, S/2000/59 (2000), Recommendation 6, para 152 5 governments of post-conflict societies.57 Prior to East Timor s 1999 referendum, the UN Secretary General in his 1999 Report to the Security Council stated that regardless of the referendum’s outcome “there will be a pressing need for reconciliation... “develop a historic record for the conflict” and to “serve as a deterrent to perpetration of atrocities elsewhere”.53 Similarly in the wake of the Timor s 1999 conflict, the UN cited a variety of utilitarian reasons when calling for the criminal prosecution of international criminals such as the need to vindicate victims, to uncover the truth, to deter future civil conflicts and to facilitate nation-building... East Timor (INTERFET), an Australian-led peacekeeping force of 8000 landed in Dili.31 On 25 October 1999, the UN Security Council established the United Nations Transitional Administration of East Timor (UNTAET) which would be responsible for the interim governance of East Timor and the territory’s transition to full independence.32 UNTAET was also charged with seeking accountability and justice for the. .. respect for human rights and accountability”.55 The International Commission of Inquiry on East Timor, established by the Secretary General upon a resolution from the UN Human Rights Committee, recommended the “prosecuting” of perpetrators of human rights violations separate from “issues of truth and reconciliation”.56 B Reconciliatory Justice The concept of reconciliatory justice as practiced by Timor Leste s ... 201 FORGIVENESS AND PUNISHMENT IN POST-CONFLICT TIMOR SUMMARY This thesis explores the post-conflict justice system of Timor Leste, formerly known as East Timor In 1999, after 25 years of Indonesian... forced deportations and “scorched earth operations” aimed at punishing the Timorese for their vote Today, Timor Leste s post-conflict institutions, consisting of the Serious Crimes Panel and the. .. of hundreds of Timorese and the destruction of 75% of Timor s infrastructure Today, East Timor has a new constitution, a newly elected government and parliament But, memories of 1999 and Timor s