Justice For Serious Crimes Committed During 1999 in Timor-Leste: Where To From Here? - Daniel Pascoe

Justice for Serious Crimes
Committed during 1999 in Timor-

Leste: Where to From Here?

Daniel Pascoe

October 2006
*

*
Originally submitted as a thesis for the Bachelor of Asian Studies (Honours) at the Australian
National University. I extend my sincerest thanks to my supervisors, Dr George Quinn and Dr
Daniel Fitzpatrick, for their advice and encouragement; to Professor James Cotton, Jim Dunn, Dr
Edward Aspinall, Dr Andrew McWilliam, Letitia Anderson, Dr Susan Harris-Rimmer, Professor Jim
Fox, Father Frank Brennan, Carolyn Graydon, Lia Kent, Professor Hilary Charlesworth, and
Professor Tim Lindsey for their contributions and advice by way of interview; and to Alex
McPherson, Bruce Hunt, Tal Karp, and Sue Tanner, for reading through my drafts. Further
comments or discussion most welcome daniel.pascoe@gmail.com

Introduction

As a result of the militia violence committed during 1999 in East Timor,
1
between
1400 and 1500 mainly unarmed civilians were murdered,
2
74 percent of existing
buildings were burnt to the ground,
3
and moreover, over 500,000 of East Timors
population of 800,000 were either internally displaced, or else fled to nearby West
Timor.
4
In what was a continuation of the Indonesian armed forces policy of
brutality towards the East Timorese people since Indonesias occupation of the
former Portuguese colony in 1975, a decision had been taken by Indonesian
military personnel (in conjunction with certain civil and police officials) to set up
militia units composed of local personnel, in order to terrorise the Timorese
population into voting for the autonomy option in the popular consultation on East
Timors political future on 30 August, 1999.
5
The severity and systematically-
planned nature of the violence, together with the deliberate targeting of
independence supporters constitutes substantial evidence that many cases of
crimes against humanity were committed in East Timor during 1999.
6

Condemnation of the violence was expressed by foreign governments, the Catholic
Church, Non Government Organisations (NGOs), and the United Nations Security
Council, which demanded the perpetrators be brought to justice.
7
Accordingly, as
part of the United Nations Transitional Administration in East Timor (UNTAET), the
UN established the Serious Crimes Process, a hybrid justice system
8
operating out
of the Dili District Court, in order to prosecute serious crimes such as genocide,
crimes against humanity and war crimes (whenever they were committed),

1
Throughout this thesis, East Timor will be used when referring to events prior to 2002, whilst
Timor-Leste will be used when referring to the period after 20 May 2002, when the Repblica
Democrtica de Timor-Leste (Democratic Republic of East Timor) gained full independence.
2
Commission for Reception, Truth and Reconciliation in East Timor, Chega!: Final Report of the
Commission for Reception, Truth and Reconciliation in East Timor (CAVR), Dili, Timor-Leste:
CAVR, 2005 (Chega), Part 7.2, 248.
3
James Dunn, East Timor: a rough passage to independence, Sydney: Longueville Books, 2003,
354; Megan Hirst and Howard Varney, Justice Abandoned? An Assessment of the Serious Crimes
Process in East Timor, Available: http://www.ictj.org/images/content/1/2/121.pdf (March 20, 2006),
3.
4
Chega!, Part 7.5, 48; Hirst and Varney, 3; Harold Crouch, The TNI and East Timor policy, in Out
of the Ashes: Destruction and Reconstruction of East Timor, edited by James J. Fox and Dionisio
Babo Soares, Canberra: ANU E Press, 2003, 141-167, 159-160; Kingsbury, 77.
5
James Dunn, Crimes against Humanity in East Timor, January to October 1999: Their Nature and
Causes, in Masters of Terror: Indonesias Military & Violence in East Timor in 1999, Canberra
Papers on Strategy & Defence, No. 145, Canberra: Strategic and Defence Studies Centre,
Australian National University, 2002, 60-98, 69.
6
Chega!, Part 8, 115.
7
United Nations Security Council Resolutions 1264 (15 September 1999) and 1272 (25 October
1999).
8
The Dili Special Panels for Serious Crimes (SPSC) were the first clear example of a hybrid
criminal tribunal, so-called because of the fact that both international and East Timorese judges sat
on the panels (two international judges and one East Timorese judge per panel), both domestic and
international law was applied by the court, and also due to the shared financial responsibility of the
constituent state and the United Nations (Hirst and Varney, 5; Susan Harris-Rimmer and Effi
Tomaras, Aftermath Timor Leste: reconciling competing notions of justice, Canberra: Parliament of
Australia, 2006, 5; Taina Jrvinen, Human Rights and Post-Conflict Transitional Justice in East
Timor, UPI Working Papers 47 (2004), 49). Hybrid panels are therefore a combination of purely
domestic criminal justice processes, and international criminal tribunals (such as the International
Criminal Tribunals for Rwanda and Yugoslavia) Jrvinen, 49-50.

together with murder, torture and sexual offences committed during 1999.
9
In
Jakarta, under significant international pressure, the Indonesian government
agreed to establish an ad hoc Human Rights Court to try the Indonesian-based
suspects.

Unfortunately, neither judicial process was ultimately able to bring those
perpetrators most responsible to justice.
10
Despite considerable success in
prosecuting lower-level militia members still residing in Timor-Leste, the Dili-based
Serious Crimes Process found over 85 percent of its indictees out of its
jurisdictional reach, residing in West Timor and elsewhere in Indonesia.
11

Moreover, the Indonesian government had reneged on a Memorandum of
Understanding signed with UNTAET in 2000 that created a procedure for the
transfer of suspects between jurisdictions.
12
Meanwhile, the Jakarta-based ad hoc
Court, and its subsequent appeals processes, only succeeded in obtaining the
conviction of a single accused: Eurico Guterres, an East Timorese militia leader.
The proceedings in the ad hoc Court have therefore been widely denounced as a
failure of justice, and have resulted in strident international criticism.
13

Much has been said and written on the future of the justice process for serious
crimes committed in what is now Timor-Leste, by those individuals and institutions
that have the potential to shape the future of this new nation. Some protagonists
(including Timor-Lestes Commission for Reception, Truth and Reconciliation,
international NGOs, and the leaders of the East Timorese Catholic Church) have
argued for a revisiting of the trials in Dili and Jakarta, or the establishment of a new
domestic or international mechanism to bring the leading perpetrators to face trial.
Others (including East Timorese President Xanana Gusmao and some foreign
governments) have instead favoured non-adversarial solutions, being unwilling to
compromise their economic and security ties with the Indonesian government, and
also claiming that restorative justice measures
14
would best serve Timor-Lestes

9
UNTAET Regulation 2000/15, Section 2. For the express purpose of dealing with the perpetrators
of so-called less-serious crimes (eg arson, minor assault, property destruction and looting) and
restoring the dignity of their victims through a Community Reconciliation Process, as well as
establishing the truth regarding human rights violations in East Timor between 1974 and 1999,
UNTAET Regulation 2001/10 established an independent Commission for Reception, Truth and
Reconciliation (Comisso de Acolhimento, Verdade e Reconciliaco de Timor Leste, or CAVR).
The success of the Community Reconciliation Process in bringing together victims and perpetrators
of lesser crimes and offering restitutionary solutions (see Zifcak, 54, and Chega!, Part 9, 46-47)
means that this thesis shall only be concerned with the serious crimes committed in 1999.
10
Prafullachandra Bhagwati, Yozo Yokota, and Shaista Shameem, Report to the Secretary-General
of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in
Timor-Leste (then East Timor) in 1999, UN Doc S/2005/458 (26 May 2005) (Commission of Experts
Report), [359], [374].
11
Ibid., [48], [80]; Hirst and Varney, 16.
12
Hirst and Varney, 6; Commission of Experts Report, [80]-[82].
13
Harris-Rimmer and Tomaras, 7; David Cohen, Intended to Fail: The Trials Before the Ad Hoc
Human Rights Court in Jakarta, Available: http://www.ictj.org/images/content/0/9/098.pdf (20 March
2006), ii; Commission of Experts Report, [375]; Above the law; Indonesias security forces, The
Economist, 14 August 2004, 48; Roper and Barria, 533.
14
To aid in the reconstruction of a post-conflict society, restorative justice measures include truth
commissions, reparations for victims, and amnesties for perpetrators, as opposed to retributive
justice measures, which encompass criminal trials and lustration for perpetrators (Kiss, 1).

future development as an independent nation. Overall, a wide range of institutional
solutions have been suggested. However, many of the models that have been
proposed are mutually exclusive. Moreover, despite the large amount of writing on
this subject, commentators have seldom considered whether a particular measure
is feasible or not, both from a practical and theoretical perspective. As President
Gusmao has stated, when we demand an international tribunal we do not ask
ourselves if we can actually do that or if we are capable of that.
15
This
comment might be extended to every judicial and non-judicial solution that has
been proposed.

In this thesis, after Chapters One and Two (which describe the historical
developments that have led to the current situation), I will address this deficiency in
the available literature by considering solutions to the question of justice for serious
crimes committed in Timor-Leste during 1999 within a normative framework.
Chapter Three outlines the judicial and non-judicial models proposed as solutions
by the major individual and institutional players in Timor-Lestes future
development. Chapter Four considers the practical benefits and drawbacks of
each option, employing an approach of deductive analysis to eliminate those
models that have not proved practically feasible and effective in the current political
climate. Finally, Chapter Five considers those remaining institutional models within
a transitional justice framework, and also considers their legality under international
law. In the conclusion, a final set of strategies is presented, constituting the best
approach to now take in response to what is a vital issue facing the leaders of
Timor-Leste, as they seek a peaceful reconstruction of their new nation and a
prosperous future.

15
Xanana Gusmao, Considering a Policy of National Reconciliation, speech to the National
Parliament, Dili, Timor-Leste, 21 October 2002, in Timor Lives! Speeches of Freedom and
Independence, Alexandria, NSW: Longueville Media, 2005, 119.

Chapter One

History of the Conflict in Timor-Leste and Legal
Responsibility for Serious Crimes Committed
during 1999

Introduction

The violent crimes committed in East Timor in 1999 should not been seen as a
one-off conflict between rival local factions supporting and opposing independence
from Indonesia. Instead, the overall historical context of the crimes must be
considered, as evidence for the claim that senior Indonesian military, police and
civil officials bear legal responsibility for the serious crimes that were committed
during 1999, as well as the militia members themselves. The historical context
shows that the violence committed bore many of the characteristics of the
Indonesian military brutality witnessed in East Timor since Indonesias invasion in
1975, and moreover that the crimes of 1999 were systematically planned and
executed. Accordingly, by analysing recent East Timorese history and the build-up
to the events of 1999, the nature of the legal responsibility for those events
becomes evident.

End of Portuguese Colonialism: 1974-1975

Portugal became a colonial presence in East Timor from the sixteenth century
16

and established a colonial capital in Dili in 1769.
17
Following the Carnation
Revolution during April 1974, all of Portugals colonies, including East Timor, were
given the right to determine their own political future, including the option of full
independence.
18
A flimsy alliance for independent government between two of the
three major East Timorese political parties that had recently emerged, Unio
Democrtica de Timor
19
(UDT) and Frente Revolucionria de Timor Leste
Independente
20
(Fretilin), soon fell apart,
21
leading to a brief but bloody civil war
after UDT had attempted a coup against the Fretilin-controlled government in
August 1975.
22
Fretilin secured victory in October 1975, and on 28 November
proclaimed the independence of the Democratic Republic of Timor-Leste.
23

However, Timor-Lestes political independence did not last for long.

Indonesian Invasion and Occupation: 1975-1998

Following a covert destabilisation programme by the Indonesian military that had
taken place throughout 1975,
24
Indonesia invaded East Timor on 7 December
1975, citing Cold War security concerns and the maintenance of territorial
integrity.
25
The resulting condemnation from the UN Security Council was not
heeded by the Indonesian government, mainly because of a low level of interest

16
Harris Rimmer and Tomaras, 1.
17
James J. Fox, Tracing the path, recounting the past: historical perspectives on Timor, in Out of
the Ashes: Destruction and Reconstruction of East Timor, edited by James J. Fox and Dionisio
Babo Soares, Canberra: ANU E Press, 2003, 1-28, 10.
18
Tomodok, 77.
19
Timorese Democratic Union.
20
Revolutionary Front of Independent East Timor.
21
Tomodok, 232.
22
Jrvinen, 12.
23
Ibid., 12.
24
Lloyd, 75.
25
Soares, 55; Lloyd, 76.

from the main international players in the region (the United States, United
Kingdom, and Australia).
26
By the end of 1975 Indonesia had deployed around
20,000 soldiers in East Timor.
27
Then, on 31 May 1976, despite a lack of
recognition of the invasion from the UN, and widespread international agreement
that the invasion and occupation were illegal at international law,
28
President
Suharto officially incorporated East Timor as Indonesias 27
th
Province.
29

The invasion and its immediate aftermath brought great devastation on the East
Timorese. Casualty estimates range between 60,000 and 100,000 lives lost during
the first year of the occupation alone: mainly from disease and starvation, but also
as a result of indiscriminate killings.
30
The overall legacy of the 24 year occupation
was equally as brutal: the East Timorese Commission for Reception, Truth and
Reconciliations (CAVR)
31
conservative estimate is that around 121,600 civilians
died as a result of Indonesian policies towards East Timor.
32
Well known mass
killings such as those in Lacluta (1981), Kraras (1983), and Santa Cruz (1991)
contributed to these figures,
33
although their exposure in the Western media told
only part of the full story of human-rights abuses.

The overall picture conveyed is that Angkatan Bersenjata Republic Indonesia (the
Indonesian Armed Forces, or ABRI)
34
had little regard for the human rights of East
Timorese during the Indonesian occupation, and that their brutal actions were
condoned not only by the Indonesian government, but by many western
governments, who continued to provide significant levels of military, diplomatic and
economic support to Indonesia over the period of the occupation.
35
The
exhaustively-researched CAVR Report
36
concluded that Indonesian military
personnel were guilty of war crimes and crimes against humanity as a result their
actions over this period.
37

The Fall of the New Order

26
Dunn, Crimes Against Humanity, 64.
27
28
Ibid.; Australia was the only nation to unilaterally recognise Indonesias invasion.
29
Tomodok, 356.
30
31
See Introduction, note 9.
32
This figure includes approximately 103,000 deaths due to hunger and illness and 18,600 deaths
due to killings by force, 70 percent of which were committed by the Indonesian armed forces or their
Timorese auxiliaries (Chega!, Part 6, 10, 13); however, the CAVRs upper estimate of unnatural
deaths sustained between 1975-1999 in East Timor is 183,000 (Chega!, Part 6, 13); other
estimates of the total number of deaths due to Indonesian policies have ranged between 120,000
and 230,000 (Harris Rimmer and Tomaras, 1).
33
Nevins, 213; Subroto, 236.
34
During Suhartos Orde Baru (New Order) regime, the Indonesian armed forces, which included
the police force, were referred to as ABRI (Angkatan Bersenjata Republic Indonesia) (Crouch,
141, note 1). After the fall of the New Order in 1998, the police force was separated from ABRI, and
the remaining three arms of ABRI became known as the Tentara Nasional Indonesia (Indonesian
National Army, or TNI).
35
Lao Hamutuk, Lao Hamutuk on Reconciliation, Justice, and Reconstruction.
36
37
See Chega!, Part 7.5, 47-48.

Pro-independence demonstrations and activism in East Timor significantly
increased during the summer of 1998.
38
President Suhartos resignation during
May of that year gave independence supporters new impetus, and vigorous
opposition to a special autonomy package proposed by new President BJ Habibie
was being shown in the streets of Dili over this period.
39
At a meeting attended by
TNI officers and prominent East Timorese pro-autonomy activists on the 10
th
or
12
th
of August 1998, a campaign was officially launched to create pro-Indonesian
militias.
40
In the following months, rumours began to circulate in East Timor that
paramilitary groups were being mobilised for use against supporters of
independence.
41
Accordingly, when President Habibie made a dramatic policy
reversal and announced on 27 January 1999 that he would instead allow a UN-
supervised popular consultation on East Timors political future to take place,
42
the
foundations for a campaign of violence by autonomy supporters had already been
laid.

Setting up the Militias

Militias were not a new concept in East Timor in 1999. The existence of local
paramilitary units dates back to the Portuguese era,
43
and even more significantly,
training and deployment of East Timorese paramilitary groups was used by the
Indonesian military to pave the way for the December 1975 invasion.
44
During the
late 1970s, East Timorese were again deployed as part of Hansip (civil defence)
units that replicated those groups found throughout the Indonesian archipelago.
Moreover, as recently as the 1980s, para-military forces were created by the TNI to
oppose not only Falintil,
45
but also the growing phenomenon of passive

38
Hirst and Varney, 2; for example, three weeks after President Suhartos resignation, over 15,000
students staged a demonstration in Dili, demanding the release of Xanana Gusmao from prison in
Indonesia, and for the holding of a referendum on East Timors political future (Dunn, East Timor,
341).
39
Robinson, Peoples war, 274; President Habibie and his advisors saw a new proposal for
autonomy as a means of removing the East Timor issue from the international agenda and to
placate independence supporters, at a time when international attention was sharply focussed on
developments within Indonesia (Dunn, East Timor, 341).
40
Dunn, Crimes Against Humanity (at 69) lists the attendees at that meeting as Major General
Adam Damiri (Chief of the Udayana Regional Military Command, which encompassed East Timor
(Cohen, 68)), Colonel Tono Suratman (Military Commander of East Timor (Cohen, 68)), Joo
Tavares (the first commander of the Halilintar militia in 1975), Eurico Guterres (the leader of Garda
Paksi, a pro-Indonesian street gang, from 1995-1998 (Robinson, Peoples war, 312)) and Cancio
de Carvalho (a former civil servant in the Justice Department who went on to become the leader of
the Mahidi militia group (van Klinken and Bourchier, 116, 118)). Integration was to be protected at
all costs, according to TNI officers Damiri and Suratman. Dunn (East Timor, 342) also argues that
the preparatory planning for the militia launch was undertaken by Indonesian Generals Syafrei
Syamsuddin and Zakky Anwar Makarim from July 1998.
41
Robinson, Peoples war, 274.
42
The ballot paper was to read Do you accept the proposed special autonomy for East Timor within
the Unitary State of the Republic of Indonesia? or Do you reject the proposed special
autonomy for East Timor, leading to East Timors separation from Indonesia? (Chega!, Part 3, 135).
43
44
See Dunn, Crimes Against Humanity, 66-67.
45
Falintil (Forcas Armadas de Timor Leste Armed Forces of Timor Leste) was the armed wing of
the resistance movement (Soares, 57).

resistance.
46
It is clear then that ABRI/TNI had a long history of supporting militia
units in aid of its operations.
47

A collective memory of paramilitary activity had thereby been established that
could be called on by senior TNI officials in their activation of the 1999 militia.
48

For instance, a number of the groups that perpetrated the violence in 1999 had
been re-activated from the remnants of older battalions, and their old tactics merely
re-adopted.
49

Two days after Habibies announcement that a ballot would go ahead, a Crisis
Team on East Timor was established within Indonesian military circles, in order to
wage a renewed campaign of violence against pro-independence forces, civilian
and military. Heading the team was Major-General Zacky Anwar Makarim, who
had resigned from his position as the chief of Indonesian military intelligence in
order to take up the role.
50
The formation and reactivation of militia groups to
oppose independence conveniently functioned as an illusion for the TNI-dominated
team. Facilitating violent resistance to independence was designed to portray to
the world that it was the will of the East Timorese people to remain part of the
Indonesian state.
51
Moreover, the portrayal of East Timor as a violence-ridden
province (especially if Falintil were to retaliate) would enable the Indonesian
government to assert that an internationally-supervised referendum would fail.
52

Finally, there is some speculation that the violent attacks planned on independence
supporters may also have been intended to serve as a lesson to other Indonesian
provinces where there exist separatist movements, particularly Aceh and West
Papua.
53

For these purposes, Zacky Anwar Makarim and his team formed militia units
throughout the thirteen districts of East Timor, each group having a commander
chosen by TNI officers.
54
The overall commander of the militia umbrella body
(Pasukan Perjuangan Integrasi: Integration Struggle Force), Joo Tavares, was
also appointed by TNI officers.
55
The weapons used by the militia groups were
predominantly home-made (in order to portray an independence from the TNI),
however some modern weapons were later transferred to militia units by
Indonesian soldiers after militia members had handed over their original weapons
as part of reconciliation agreements.
56
Apart from the TNIs role, it is also clear

46
47
48
Dunn, East Timor, 342. Supreme Commander of the Militias in 1999, Joo Tavares, was to later
insist that the militias had never needed any military training, as virtually everyone in the territory
knew how to handle a gun (Robinson, Peoples war, 278).
49
Robinson, Peoples war, 301, 312-313. He lists those older groups as Rajawali, Makikit, Saka,
Sera, Partisan, Combat, 1959/75 Junior, Team Alfa and Railakang. See also Soares, 61.
50
Kingsbury, 70; Chega!, Part 8, 114.
51
Dunn, Crimes Against Humanity, 69; Robinson, Peoples war, 275.
52
Soares, 65.
53
Kingsbury, 77; Susan Harris-Rimmer, interview by author, Canberra, 27 April 2006.
54
Dunn, Crimes Against Humanity, 70; Kingsbury, 71; see Soares (at 63), for a full list of the new
militia groups established in 1999 and their leaders.
55
56
Crouch, 152; Kingsbury, 72.

that Indonesian Police and civil officials played a large part in recruiting,
supervising, and financing the pro-integration militia groups.
57

The 6000-strong membership of the militias initially consisted of disaffected youth,
those older members who had fought against Falintil at some stage after 1975, and
those loyal to prominent East Timorese who had prospered as a consequence of
integration.
58
They were joined by TNI members from West Timor dressed as
locals, and former members of criminal gangs.
59
Later however, when the violence
began, recruitment became more and more difficult. In some areas, a process of
unofficial conscription took place with young men compelled to join their local
grouping for fear of punishment if they failed to do so.
60
Hence a significant
number of the militia personnel were acting under duress.

Intimidation and Violence before the Ballot: January August 1999

Following President Habibies announcement that a popular consultation would
take place in January 1999, the first wave of violence began.
61
Scores of people
were reported murdered in February and March 1999 while tens of thousands were
made homeless. However, this first show of force by the militia was only a shadow
of things to come. During April, the shelters that the homeless turned to, including
churches, were the sites of some of the most gruesome massacres of 1999. The
militias launch of Operasi Sapu Jagad (Operation Clean Sweep) in the early part
of 1999 resulted in the Liquia church massacre
62
and the attack on the home of
independence activist Manuel Carrascalo.
63
Against this background, on 5 May
an official agreement between Indonesia and Portugal, under the supervision of the
UN, was reached in New York, detailing the arrangements for the ballot.
64

Significantly, according to the Agreement, Indonesia was to provide security so that
the plebiscite could go ahead.
65

57
Crouch, 151. The Indonesian Human Rights Commissions 2000 investigation into human rights
abuses in Timor-Leste listed the Governor of East Timor at the time of the ballot, Abilio Soares, the
Regent of Dili, Domingos Soares, as well as the Regents of Covalima, Liquia, Bobonaro and
Lospalos as crimes against humanity suspects (KOMNASHAM, [56], [73]. Kingsbury (at 71) argues
that the East Timorese component of the militias was hired by local bupati (regents).
58
Robinson, Peoples war, 277-278; Kingsbury, 71.
59
60
Dunn, Crimes Against Humanity, 70, 79.
61
Robinson, Peoples war, 274; however, Dunn, East Timor, 346, argues that attacks bearing
militia characteristics had previously been carried out on independence supporters in December
1998, and on 3 January 1999.
62
On 5 April, militia members shot and hacked to death over 40 unarmed civilians who were
seeking shelter in a churchyard in Liquia (Soares, 64).
63
On the 17 April, following a militia rally attended by more than 5000 people outside the
Indonesian Governors office, members of the Aitarak and Besi Merah Putih militia groups attacked
unarmed refugees sheltering within the Dili residence of Manuel Carrascalo. Manuelito, Manuels
son, was killed along with 14 other East Timorese (KOMNASHAM, [37]).
64
Dunn, East Timor, 347.
65
Chega!, Part 8, 96. The agreement charged Indonesian security forces with the responsibility for
maintaining peace and security in East Timor in order to ensure that the popular consultation is
carried out in a fair and peaceful way in an atmosphere free of intimidation, violence or interference
from any side (Agreement between The Republic of Indonesia and the Portuguese Republic on the
Question of East Timor, 5 May 1999, 2062 UNTS 8, Article 3).

Although the severity of the violence declined slightly during May with the arrival of
UNAMET (United Nations Assistance Mission to East Timor) staff and international
observers,
66
it was during this period that senior TNI officers, now realising that the
integration option was not favoured by a majority of the East Timorese population,
initially planned what they would do if voters were to reject the Indonesian
governments offer of autonomy. During this stage of planning, the TNI was able to
downplay the violence in April, claiming it was the result of a purely civil conflict
amongst East Timorese,
67
whilst also covertly urging the continuation of the
campaign of intimidation and harassment of independence supporters right up until
the ballot.
68
The result of discussions between military leaders was that plans for a
pembumihangusan (scorched earth operation) were formulated, with the intention
of leaving East Timor in ruins and largely devoid of population.
69

Scorched Earth Operation after the Ballot

The ballot was held on 30 August 1999, and was followed by a number of minor
incidents of political violence.
70
On 4 September the UN announced that 78.5
percent of voters had rejected Indonesias offer of autonomy.
71
This was the
trigger for the most serious outbreak of violence, which continued until the end of
September.

A summary of the most serious crimes perpetrated by the militias against civilians
after the popular consultation are as follows:

the arbitrary killing of at least 560 mainly unarmed people (contributing to
a total count of between 1400 and 1500 killings by pro-integration forces
for the whole of 1999);
72

thousands of cases of serious injury;
73

instances of torture and ill-treatment, rape, sexual slavery and
kidnapping, including approximately 182 cases of gender-based human
rights violations;
74

the intentional destruction of 74 percent of the houses and buildings in
East Timor through arson and ransacking;
75
and

66
Robinson, Peoples war, 274; however, international observers still reported some incidents of
political violence designed to intimidate those East Timorese who had enlisted to vote after the
opening of registration on 16 July (Harris Rimmer and Tomaras, 2). Soares (at 64) also reports that
some attacks during this period were directed not only at civilians, but at the growing number of
international NGO and humanitarian personnel helping preparations for the ballot. For example,
seven UN staff members were injured in a militia attack in Maliana on 29 June (Dunn, East Timor,
349).
67
68
Dunn, East Timor, 349.
69
Ibid., 350: two codenames were used for this operation: Operasi Guntur and Operasi
Wiradharma.
70
Chega!, Part 3, 143-144.
71
Soares, 53, 70.
72
Chega!, Part 7.2, 245, 248.
73
Ibid., Part 7.5, 48.
74
Dunn, Crimes Against Humanity, 72; KOMNASHAM, [60].

the intentional destruction of public infrastructure, including schools,
clinics and community centres
76

In addition to the many violent attacks on individuals, the post-ballot period also
witnessed a massive displacement of persons. Around 250,000 East Timorese are
believed to have travelled to West Timor. Some who were integration supporters
left voluntarily, but most were forced to go against their will following threats of
violence.
77
Approximately 300,000 more people became internally displaced within
East Timor as they fled into the mountains.
78
They were later to face food and
medical shortages until the arrival of UN relief later in September.
79

Finally, after two weeks of diplomatic negotiations that resulted in Indonesias
increasing international isolation, President Habibie telephoned the UN Secretary-
General to ask for assistance in restoring peace and security to East Timor.
Thereafter, the passing of UN Security Council Resolution 1264 enabled
INTERFET, an Australian-led international peacekeeping force, to restore law and
order in East Timor.
80
By the end of September the force totalled 4000 soldiers,
and had largely succeeded in its mission.
81

International Crimes Committed in 1999

The acts of violence committed in East Timor during 1999 encompassed serious
breaches of human rights and humanitarian law. Based on the events described
earlier in this chapter, at the very minimum, numerous breaches of the
International Bill of Rights
82
took place in East Timor throughout 1999.
83
Did

75
Dunn, East Timor, 354; Hirst and Varney, 3.
76
Chega!, Part 7.5, 48.
77
Ibid., Part 7.5, 48; Hirst and Varney, 3; Crouch, 159-160.
78
Ibid., Part 7.5, 48. The total population of East Timor at the time was only around 800,000
(Kingsbury, 77).
79
Dunn, Crimes Against Humanity, 63; Annemarie Devereux, Accountability for human rights
abuses in East Timor, in Guns and Ballot Boxes: East Timors vote for independence, edited by
Damien Kingsbury, Melbourne: Monash Asia Institute, 2000, 135-155, 141, also states that militia
members blocked the provision of emergency supplies of food, water and medical equipment to
displaced persons in temporary camps.
80
Chega!, Part 3, 150-151.
81
Jrvinen, 17.
82
The International Bill of Rights consists of the Universal Declaration of Human Rights (UDHR);
the International Covenant on Civil and Political Rights International Covenant on Civil and Political
Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March
1976) (ICCPR), and the International Covenant on Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights, opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR).
83
Devereux (at 141) lists, at a minimum, breaches of the rights to life (ICCPR, Article 6), liberty and
security of person (ICCPR, Article 9), freedom of movement (ICCPR, Article 12), the rights not to be
arbitrarily deprived of property (UDHR, Article 17), not to be subjected to arbitrary or unlawful
interference with ones privacy, family, home or correspondence (ICCPR, Article 17), the rights to
hold opinions (ICCPR, Article 19), freedom of expression (ICCPR, Article 19(2)), equality before the
law (ICCPR, Article 26), an adequate standard of living (ICESCR, Article 11), the right not to be
tortured (ICCPR, Article 7), and in all probability, breaches of the rights to work (ICESCR, Article 6),
education (ICESCR, Article 13) and health (ICESCR, Article 12). The KOMNASHAM Report (at
[22]) states that there were violations of the rights to life (ICCPR, Article 6), personal integrity and

these actions also constitute serious international crimes: crimes against humanity,
genocide, and war crimes (these being crimes that have attained jus cogens
status)?
84

A crime against humanity requires that: 1) murder, extermination, enslavement,
deportation, imprisonment or deprivation of liberty, torture, sexual violence
(including rape), persecution, abduction, apartheid or other inhumane acts of a
similar character intentionally causing great suffering, or serious injury to body or to
mental or physical health be committed; and 2) those acts come as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack.
85
As described above, the violent attacks committed in
1999 clearly contain examples of the actions listed in the first element of crimes
against humanity. For the second element, a vast amount of available evidence
points to the killings and other violence having been carried out systematically
[and] deliberately directed against the opponents of integration with Indonesia,
86

rather than constituting an unorganised, sporadic series of incidents.

War crimes, unlike crimes against humanity,
87
can only be committed in times of
armed conflict.
88
From the definition of armed conflict enunciated by the
International Criminal Tribunal for the Former Yugoslavia, it is apparent that the
resort to arms must be mutual.
89
Accordingly, in the East Timorese context, it is
difficult to argue that the crimes committed in 1999 took place during an armed
conflict, due to the unilateral nature of the violence perpetrated by militia

liberty (ICCPR, Article 9), freedom of movement (ICCPR, Article 12), and property (UDHR, Article
17).
84
Jus cogens norms are rules of international law that have attained a peremptory status, and
hence cannot be derogated from or contracted out of by States (Donald K. Anton, Penelope
Mathew, and Wayne Morgan, International Law: Cases and Materials, Oxford and New York:
Oxford University Press, 2005, 233). On genocide, crimes against humanity and war crimes being
part of this group, see M. Cherif Bassiouni, Accountability for International Crimes and Serious
Violations of Fundamental Human Rights: International Crimes: Jus Cogens and Obligation Erga
Omnes, Law and Contemporary Problems 59 (1996): 63, 68: The legal literature discloses that the
following international crimes are jus cogens: aggression, genocide, crimes against humanity, war
crimes, piracy, slavery and slave-related practices, and torture (emphasis added); see also
Restatement (Third): The Foreign Relations Law of the United States, [702, n], and Amnesty
International and Judicial System Monitoring Programme, Justice for Timor-Leste: The Way
Forward, Available: http://web.amnesty.org/library/print/ENGASA210062004 (15 May 2006), [11.5].
85
Rome Statute, Article 7.
86
Dunn, East Timor, 353; this point is also reiterated by Robinson, East Timor 1999, 248; Chega!,
Part 7.5, 48, Part 8, 115, and KOMNASHAM, [21], [60].
87
Devereux, 136, note 5.
88
Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces
in the field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October
1950), Article 2; Geneva Convention for the amelioration of the condition of wounded, sick and
shipwrecked members of armed forces at sea, opened for signature 12 August 1949, 75 UNTS 85
(entered into force 21 October 1950), Article 2; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into
force 21 October 1950), Article 2; Geneva Convention relative to the treatment of prisoners of war.
Opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Article
2; see also Rome Statute, Article 8.
89
Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction),
[70]; see also Devereux, 146.

personnel.
90
Xanana Gusmaos directive from his prison cell in Jakarta, imploring
Falintil forces and the general population not to fight back against the militias,
91
is
evidence of this. If a long-term perspective is taken, analysing violent incidents
right back to 1974-1975 (as the CAVR achieved), a conclusion that war crimes
were committed in East Timor is possible.
92
However, it is doubtful that the same
findings would arise merely by looking at the events of 1999.
93

Finally, the commission of genocide requires an act designed to destroy, in whole
or in part, a national, ethnical, racial or religious group.
94
If it can be demonstrated
that the militias actions were designed to destroy the East Timorese as a group
per-se, then a finding of genocide might ensue. However, it is arguable that most
of the killings and other violent acts evinced a political motive, as the attacks were
directed against independence supporters (and foreign staff of international
agencies).
95
Such acts would probably not constitute genocide.
96
It follows that
any attempted prosecution of the crimes committed in 1999 in East Timor on the
basis that they constituted crimes against humanity (which may be committed for
political reasons) is most likely to be successful.
97

Legal Responsibility for Crimes Against Humanity

So who is legally responsible for the commission of such crimes against humanity?
It is clear that the East Timorese militia-members themselves, the trigger-pullers,
are individually responsible for breaches of international criminal law, as the actual
commissioners of the crimes.
98

The pressing question however is whether responsibility can be attributed higher
up the chain of command of the Indonesian military, police and civil administration?
Individual responsibility, as defined in the Rome Statute, applies to individuals who
commit, order, solicit, induce, aid, abet, or otherwise contribute to the commission
or attempted commission of a crime.
99
The relevant actions and omissions of
potentially culpable TNI soldiers and officers, together with Indonesian police and
civil officials consisted of:

90
Devereux, 146; Chega!, Part 7.5, 48.
91
Chega!, Part 3, 129.
92
Devereux, 146-147; see Indonesian Invasion and Occupation: 1975-1998 (above).
93
Note that the Serious Crimes Unit (set up to prosecute the perpetrators of the 1999 crimes in East
Timor) reached the same conclusion: see Chapter Two, note 167.
94
Rome Statute, Article 6. The relevant actions can include killing; causing serious bodily or mental
harm; deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction; birth prevention, and forcibly transferring children to another group.
95
Devereux, 149.
96
KOMNASHAM, [62].
97
Devereux, 149.
98
Rome Statute, Article 25(3)(a); that there exists individual responsibility for international crimes
committed in Timor-Leste in 1999 was reiterated in UN Security Council Resolution 1264 (15
September 1999).
99
Ibid., Article 25(3).

planning the campaign of pre-ballot intimidation and harassment of
independence supporters and the voting public;
100

creating, recruiting, financing, arming and training the militia groups;
101

making no coordinated attempt to prevent violent attacks taking place, either
before or after the ballot, and in some cases actively commanding or
encouraging violent actions (especially in border areas);
102

some TNI soldiers, particularly those of East Timorese origin, actually
participating in the violence;
103
and
playing a major participatory and commanding role in the systematic forced
deportation of many thousands of civilians following the ballot.
104

Therefore, based on the Rome Statute definition, individual responsibility attaches
to those lower-ranking TNI members who directly committed, or ordered the
commission of systematically-planned crimes before and after the ballot.
105

Moreover, those Indonesian military, police and civilian officials who managed and
planned the violence would arguably bear individual criminal responsibility.
106

In addition to individual responsibility, military, police, and civilian officials may also
be liable for the commission of international crimes by their subordinates by virtue
of the doctrine of command responsibility. According to the Rome Statute,
command responsibility requires proof 1) of a superior-subordinate relationship; 2)
that the superior either knew or, owing to the circumstances at the time, should
have known that the forces were committing or about to commit such crimes, and
3) that the superior failed to take all necessary and reasonable measures within
his or her power to prevent, stop and punish the perpetrators.
107

100
See Chega!, Part 8, 100-101, for specific examples.
101
Ibid., Part 8, 99; Dunn, East Timor, 342; see Chega!, Part 8, 105-107, for specific examples of
TNI, Police and civilian officials arming, training, and financing militia groups.
102
Chega!, Part 8, 103; Crouch, 161; Dunn, East Timor, 352.
103
Crouch, 161; KOMNASHAM, [56]. In many cases there was a significant overlap in membership
between TNI units and militia units: see Chega!, Part 8, 103, for specific examples.
104
Crouch, 161; Dunn, Crimes Against Humanity, 66; allegedly commanding the mass deportation
were Kopassus (Indonesian Special Forces) Officers, with TNI Major Generals Zakky Anwar
Makarim and Adam Damiri also exercising some degree of command.
105
Robinson, East Timor 1999, 250. For specific examples, see Chega!, Part 8, 98-99. Overall,
testimony detailing well over 2000 individual crimes committed by TNI and militia members acting
together as perpetrators was provided to the CAVR. These crimes included 761 cases of illegal
killings, 968 cases of torture and mistreatment, 883 cases of arbitrary detention, 553 cases of
property damage and 11 cases of sexual crimes (Chega!, Part 8, 104).
106
Robinson, East Timor 1999, 251. Based upon the Rome Statute (Article 25) definition of
individual responsibility, together with the judicial pronouncements on the doctrine in the Prosecutor
v Tadic (Judgment) decision in the Appeal Chamber of the International Criminal Tribunal for the
Former Yugoslavia, Robinson concludes that individual criminal responsibility arguably attaches to
any individual who 1) helped to establish the militias and to recruit their members; 2) made public
statements in support of the militias; 3) granted the militias legal and political recognition; 3)
provided militiamen with military training and guidance; 4) conducted joint combat operations with
militia groups; 5) provided militiamen with weapons and/or ammunition, and 6) provided the
militias with financial and/or material support. For Robinsons full list of managers and planners
of the militia operations, see Robinson, East Timor 1999, 251-252.
107
Rome Statute, Article 28.

For the first element, effective responsibility for the command of TNI operations in
East Timor rested with General Wiranto, the Indonesian Armed Forces
Commander and Minister of Defence and Security.
108
Additionally, a number of
senior army officers at the Armys headquarters in Jakarta exercised command
authority over their junior troops in East Timor.
109
Local police chiefs in East Timor,
the provincial governor, local bupati (regents), and Indonesian cabinet ministers
directly involved in shaping Indonesias East Timor policy arguably also exercised
varying levels of command over the TNI and militia groups in East Timor.
110

The second element of command responsibility also appears to be satisfied, as
most of the relevant superiors undoubtedly knew of the nature and extent of the
violence taking place in East Timor.
111
For example, General Wiranto made
frequent visits to East Timor during 1998 and 1999, where he was informed by
military liaison officers and UNAMET officials of the crimes taking place.
112

Moreover, other high-ranking TNI, police, and civil officials received regular written
and oral reports from within the Indonesian militarys own hierarchical structure and
from UNAMET officials, other Indonesian sources, foreign governments and
international and domestic NGOs of the violence throughout 1999.
113
It is
implausible to suggest that senior TNI, police and civilian officials, even if based in
Jakarta, did not know what was going on.

The final element, that the authorities failed to prevent, halt and punish the
commission of crimes against humanity, also appears to be satisfied. As
discussed above, far from discouraging violent attacks, to the contrary, many TNI,
police and civil officials actually promoted the commission of many of these crimes.
Significantly, if the will to halt the violence had existed, appropriate measures could
have been taken.
114
For example, when General Wiranto met with UNAMETs Ian
Martin on 7 July 1999, he stated that if Falintil was willing to surrender its weapons
to Indonesian police, he could assure that the militias would be similarly disarmed
within two days.
115
A number of other statements made by General Wiranto and
Colonel Tono Suratman
116
also evince their conviction that they could have halted

108
Robinson, East Timor 1999, 254.
109
See Robinson, East Timor 1999, 255, for a full list of suspects.
110
Chega!, Part 8, 112-113; Robinson, East Timor 1999, 255-257; the only two relevant changes in
command responsibility during 1999 came first on 4 September, when the TNI assumed control of
all security operations in East Timor, superseding the role of police and civil authorities. Second, on
7 September, President Habibie declared Martial Law in East Timor. Thereafter, all military, police
and civilian operations came directly under Martial Law commander Major General Kiki Syahnakri,
together with General Wiranto and President Habibie himself.
111
112
This allegation is detailed in the Wiranto et al indictment issued by the Serious Crimes Unit in
February 2003 (see Chapter Two, Flaws in the Proceedings: Dili). Similar allegations are made of
Wirantos co-accused: Major General Zacky Anwar Makarim, Major General Kiki Syahnakri, Major
General Adam Damiri, Colonel Tono Suratman, Colonel Noer Muis and Lieutenant Colonel Jajat
Sudrajat (Robinson, East Timor 1999, 259).
113
Robinson, East Timor 1999, 259; see Chega!, Part 8, 109-110, 113, for more specific examples.
114
115
Ibid.
116
See note 40 (above).

the violence if they chose to do so.
117
Taking into account that by August 1999
there were over 17,000 regular TNI troops stationed in East Timor, and moreover
6,500 police on active duty, it would be a fallacy to suggest otherwise.
118
Finally,
there was an almost total failure by the TNI leadership to discipline their forces for
the commission of such serious crimes, despite significant evidence of their direct
involvement. Soldiers and officers were not held legally accountable on an internal
or external basis. Instead a number of senior military officials were even promoted
for their services in East Timor.
119

Conclusion

The tragic violence witnessed in East Timor during 1999 demands a search to
establish legal responsibility for the perpetrators. Overall, legal responsibility for
the crimes against humanity allegedly committed in East Timor during 1999
extends to not only the militia personnel who actually carried out violent attacks,
but also to those TNI, Indonesian police and civil and administrative officials who
contributed to the violence by ordering, aiding and abetting, and inciting the
attacks. Further, those high-ranking officials who failed to prevent, halt and punish
violent actions by the individuals directly involved are liable on the basis of
command responsibility. The violence committed in 1999 was not the result of a
civil war between East Timorese factions, as has been claimed in Indonesia,
120
but
was a systematically planned operation designed to intimidate and punish those
East Timorese who supported independence. It was a continuation of the military
policies ruthlessly implemented throughout the Indonesian occupation.

117
See Chega!, Part 8, 107-108, for specific examples.
118
Ibid., Part 8, 108-109.
119
See Chega!, Part 8, 111, for specific examples.
120
See Muladi, 17-21.

Chapter Two

Judicial Responses to Serious Crimes Committed
during 1999

Introduction: Setting up Judicial Mechanisms to Respond to the Crimes

Amongst UN member States, it was widely agreed that the violence committed in
East Timor during 1999 included many examples of severe violations of
international human rights and humanitarian law.
121
UN Security Council
Resolutions 1264 (15 September 1999) and 1272 (25 October 1999) called for the
perpetrators of such violations to be brought to justice.
122
Accordingly, after the
establishment of UNTAET as the executive and legislative authority in East Timor
from 25 October 1999,
123
a number of international teams conducted investigations
into the violence. Foremost amongst these was the International Commission of
Inquiry on East Timor (ICIET), established by a resolution of the UN Human Rights
Commission.
124
In its January 2000 report the Commission recommended the
establishment of an ad hoc international criminal tribunal to try the accused.
However, reservations amongst potential donor nations regarding the costs of an
international tribunal similar to those established for Rwanda and Yugoslavia,
together with assurances made to the UN Secretary General by Indonesian
President Abdurrahman Wahid that perpetrators residing in Indonesia would be
brought to justice, precluded the formation of such an international judicial
mechanism.
125

Discussion within the UN resulted in an agreement to set up a specially-constituted
hybrid criminal justice mechanism in East Timor.
126
Accordingly, in June 2000 the
Serious Crimes Unit (SCU) was established to conduct criminal investigations
within a UN civilian police framework
127
and the Special Panels for Serious Crimes
(SPSC) were established to function as the judicial bodies where perpetrators of
serious crimes would be tried, operating out of the Dili District Court.
128
The SCU
and SPSC together possessed unlimited temporal mandates to investigate and
prosecute genocide, crimes against humanity and war crimes, and additionally
possessed jurisdiction over cases of murder, sexual offences and torture occurring

121
Herbert D. Bowman, Letting the Big Fish get Away: the United Nations Justice Effort in East
Timor, Emory International Law Review 18 (2004): 371, 378-379; Erica Harper, Delivering Justice
in the Wake of Mass Violence: New Approaches to Transitional Justice, Journal of Conflict &
Security Law 10 (2005): 149, 153-154; Roper and Barria, 525.
122
UN Security Council Resolution 1264, [1]; UN Security Council Resolution 1272, [16].
123
UNTAET was created by UN Security Council Resolution 1272 (25 October 1999), six days after
the Indonesian Parliament had ratified the result of the popular consultation (Jrvinen, 18).
124
Ibid., 41-42; the International Commission of Inquiry on East Timor (an independent body) was
established following the earlier report of the three Special Rapporteurs of the UN Commission on
Human Rights, based on their November 1999 mission, in which they outlined serious violations of
human rights in East Timor, and also called for an international criminal tribunal to be established if
Indonesia did not bring the culprits to justice (Robinson, East Timor 1999, 271).
125
Bowman, 381; Jrvinen, 44; Letter from the Minister of Foreign Affairs of Indonesia to the
Secretary General.
126
127
Jrvinen, 47; the SCU came under the leadership of a UN Deputy General Prosecutor for
Serious Crimes, who operated under the authority of the Prosecutor-General for Timor-Leste after
independence in May 2002 (Hirst and Varney, 5).
128
Jrvinen, 49; the SPSC consisted of two Trial Courts and an Appeal Court (Bowman, 389-390).
The SCU and SPSC were authorised by UNTAET Regulation 2000/15. The entire process will
henceforth be referred to as the Serious Crimes process, or regime.

between 1 January and 25 October 1999.
129
Following full independence for
Timor-Leste on 20 May 2002, the SCU and SPSC operated within the financial and
logistical framework of the UNs successor mission: the United Nations Mission of
Support in East Timor (UNMISET
130
), despite their formal integration within the
East Timorese court structure by that stage.
131
The Special Panels ceased to
operate altogether when the UN terminated its financial and logistical support for
the Serious Crimes process in May 2005, in the context of an overall downgrading
of its mission in Timor.
132

Only the perpetrators of serious crimes were to be brought to trial within the
Special Panels. For the express purpose of making accountable the perpetrators
of so-called less-serious crimes,
133
restoring the dignity of their victims through
Community Reconciliation Processes, as well as establishing the truth regarding
human rights violations in East Timor between 1974 and 1999, UNTAET
established an independent Commission for Reception, Truth and
Reconciliation.
134
The CAVRs findings and recommendations, released publicly in
January 2006, will be considered in Chapter Three.

Parallel investigations into the 1999 violence were conducted by the Indonesian
National Human Rights Commission (KOMNASHAM
135
) from September 1999 to
January 2000, by way of a specially established team: the Commission of Inquiry
into Human Rights Violations in East Timor (KPP-HAM
136
). The Commission was
mandated to investigate human rights violations in East Timor from 1 January to 25
October 1999.
137
The KPP-HAM report found that Indonesian officials within the
civil bureaucracy were responsible for financing and supporting certain militia
groups and moreover that the TNI and Indonesian Police had deliberately assisted
the militias in perpetrating a systematic and planned campaign of violence,
comprising many instances of crimes against humanity.
138
The report also

129
UNTAET Regulation 2000/15, Section 2.
130
UNMISET was established by UN Security Council Resolution 1410 (17 May 2002).
131
Jrvinen, 53.
132
See UN Security Council Resolutions 1543 (14 May 2004) and 1573 (16 November 2004).
Although the UN Secretary-General recommended in July 2006 that the investigative function of the
SCU be resumed within the framework of UNMIT (United Nations Integrated Mission in Timor-Leste
the new UN mission to Timor-Leste), such a move would not include the re-establishment of the
SCUs prosecutorial component (Report of the Secretary-General on justice and reconciliation for
Timor-Leste, [36]).
133
The category of less-serious crimes did not include blood crimes (such as murder, rape and
torture), and instead consisted of acts such as theft, minor assault, arson, the killing of livestock or
the destruction of crops and additionally non-criminal actions that were considered to have caused
harm to communities, such as collaboration or secretly providing information, which led to violations
being committed (Chega!, Part 9, 11-12).
134
Stahn, 953; see Introduction, note 9.
135
Komisi Nasional Hak Asasi Manusia.
136
Komisi Penyelidik Pelanggaran HAM di Timor Timur.
137
KOMNASHAM, [6]; the KPP-HAM report looked at 13 specific incidents in detail, as well as
several general categories of human rights abuses: systematic and mass murders; torture and ill
treatment, enforced disappearances, gender-based violence, forced displacement of civilians and
the scorched-earth campaign (at [22]-[28], [32]-[51]).
138
Ibid., [21], [63]; a full list of civil, military and police crimes against humanity suspects is found at
[73].

implicated high-level Indonesian military officials who allegedly knew about the
violence, but failed to prevent or halt its occurrence.
139
In March 2001, in response
to recommendations outlined in the KPP-HAM report, and under significant
international pressure, President Wahid issued Presidential Decree No.53/2001,
establishing an ad hoc Human Rights Court on East Timor.
140
The ad hoc Court
trials were completed in 2004, and the final appeal from the ad hoc Court to the
Indonesian Supreme Court was completed in March 2006.
141

Whilst it was originally tacitly intended that the Jakarta ad hoc Human Rights Court
would be the means to prosecute suspects residing in Indonesia, whereas the
Special Panels would try East Timorese nationals,
142
a Memorandum of
Understanding (MOU) between Indonesia and UNTAET was nonetheless
concluded on 5-6 April 2000, putting in place a framework for cross-border
cooperation regarding judicial, legal and human-rights matters.
143
The MOU
explicitly outlined arrangements for evidence-sharing, the service of legal
documents, powers of arrest, search and seizure, and most importantly the transfer
of suspects between the two jurisdictions on request, in order to enforce arrest
warrants.
144
However, no formal extradition agreement has ever been signed
between Indonesia and Timor-Leste.
145

Serious Crimes Unit and Dili Special Panels for Serious Crimes: Summary of
Proceedings

The SCU began issuing indictments in December 2000.
146
By the cessation of the
Serious Crimes Process in May 2005, as a result of its investigative work, the SCU
had issued 95 indictments against 440 accused persons.
147
The indictments
issued were based upon a prosecution strategy of pursuing ten priority cases, so
selected because of the number of victims involved, the seriousness and political
significance of the crimes, and ease of access to evidence.
148
These indictments

139
Ibid., [56].
140
Indonesian Law 26/2000 established four permanent Human Rights Courts for cases occurring
after the legislation, and allowed the creation of ad hoc Human Rights Courts for cases which
occurred before November 2000. In August 2001, newly-elected President Megawati Sukarnoputri
further issued Presidential Decree No.96/2001, extending the jurisdiction of the ad hoc Court from
cases that took place solely after the plebiscite in September, to include incidents that occurred
during April 1999.
141
Siboro.
142
Jrvinen, 52.
143
See Memorandum of Understanding between the Republic of Indonesia and the United Nations
Transitional Administration in East Timor regarding Cooperation in Legal, Judicial and Human
Rights related matters.
144
Ibid., Sections 1-9.
145
Commission of Experts Report, [81].
146
Hirst and Varney, 7.
147
Judicial System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 30.
148
Hirst and Varney, 7; the ten priority cases were: 1) the Liquia Church massacre of April 6, 2)
the attack on the house of Manuel Carrascalo of April 17, 3) the attack of the Maliana Police
Station of September 2-8, 4) the Lospalos case of April 21 to September 25, 5) the Lolotoe case of
May 2 to September 16, 6) the Suai Church massacre of September 6, 7) the attack on Bishop
Belos house of September 6, 8) the Passabe and Makaleb massacres of September and October,

led to a total of 55 trials proceeding in the Special Panels for Serious Crimes,
resulting in 84 convictions and three acquittals.
149
Most of the jail sentences
handed out were between seven and fifteen years in length.
150

The glaring discrepancy between the numbers of those tried and those indicted
came as a result of Indonesias lack of cooperation in transferring suspects
between jurisdictions, in direct contravention of the MOU of 2000.
151
339 suspects
remain at large, the vast majority thought to be residing in Indonesia.
152

Flaws in the Proceedings: Dili

Obviously, the biggest hurdle faced by the Special Panels was the inability to bring
suspects residing outside of Timor-Leste to trial. As a result, it is mainly low-level
East Timorese militia members who have been made legally accountable for the
events of 1999, rather than the Indonesian military, police and civil officials who are
alleged to have planned, managed and commanded the violence (even though
some of these individuals were actually named in SCU indictments).
153
While a
total of 77 indictees became the subject of Interpol Red Notices,
154
this procedure
has had little or no effect in procuring the suspects for trial, due to non-cooperation
from Indonesia, and a lack of political will from other UN member states.
155
As a
UN investigative commission noted in May 2005, despite the number of convictions
secured against lower-level perpetrators,

9) a second Lospalos case and 10) cases of sexual violence in various districts between March and
September (Hirst and Varney, 7-8; note 49).
149
One other defendant was ruled unfit to stand trial, and the prosecution case was either
withdrawn or dismissed against 13 further defendants (Judicial System Monitoring Programme,
Overview of the Timor Leste Justice Sector 2005, 30-31).
150
151
Anton Girginov, Extradition from Indonesia to East Timor and the Serious Crimes Process in
East Timor (1999-2005), East Timor Law Journal 3 (2006): 2, [1]; The Indonesian government
argued that the agreement did not become binding until it was ratified by parliament, which has
never occurred. Moreover, the Indonesian government also claimed that the MOU only applied to
the period of UNTAET administration, and so did not apply after Timor-Leste became fully
independent in May 2002 (Hirst and Varney, 16).
152
Commission of Experts Report, [48]; Hirst and Varney (at 16) estimated that in June 2005, 304
suspects were residing in Indonesia.
153
Cohen, 11; Judicial System Monitoring Programme, Submission to the United Nations
Commission of Experts, 4.
154
A Red Notice, issued by Interpol (the worlds largest international police organisation) allows
information contained in a warrant for arrest issued by a domestic jurisdiction (in this case,
UNTAET/Timor-Leste) to be circulated worldwide, with a view to securing international cooperation
in making a provisional arrest of the suspect abroad (Interpol, Fact Sheet: Notices, Available :
http://www.interpol.int/Public/ICPO/FactSheets/GI02.pdf (5 September 2006); Interpol, Wanted,
Available: http://www.interpol.int/Public/Wanted/Default.asp (5 September 2006)). Since the
closure of the Serious Crimes Process in May 2005, the Prosecutor-General of Timor-Leste has
also forwarded 10 arrest warrants to Interpol, which have resulted in the issue of new Red Notices
(Report of the Secretary-General on justice and reconciliation for Timor-Leste, [11]).
155
Hirst and Varney, 8; Nevins, 165; Amnesty International and Judicial System Monitoring
Programme, [4.1].

the serious crimes process has not yet achieved accountability of those
who bear the greatest responsibility for serious violations of human rights
committed in East Timor in 1999.
156

The most serious example of this problem came after 24 February 2003, when the
SCU issued its most renowned indictment, against General Wiranto,
157
as well as
six other high-ranking TNI officers and Abilio Soares, the former civilian Governor
of East Timor.
158
Amongst the charges, Wiranto was accused of crimes against
humanity, on the basis of command responsibility.
159
After the high-profile
indictment was issued, a lack of political support for the continued operations of the
SCU and Special Panels was manifest from the way in which first the UN, and then
the government of Timor-Leste distanced themselves from the indictment. Each
claimed it was the others responsibility, in order not to compromise their relations
with Indonesia.
160
Timor-Lestes General Prosecutor has refused to forward the
arrest warrant to Interpol, hence Wiranto and his co-accused remain at large in
Indonesia,
161
and are able to travel abroad with relative freedom.
162

In addition to those suspects presently outside of Timor-Lestes jurisdiction, there
are other groups of perpetrators that were never the subject of SCU prosecution.
First, it is estimated that around 830 murders committed in 1999 did not result in
indictments, primarily due to resource, financial, and time constraints.
163
Second,
many of the perpetrators of crimes other than murder have also never been the

156
Commission of Experts Report, [359], original emphasis.
157
Wiranto was the Indonesian Minister of Defence, and Commander of the Armed Forces at the
time of the plebiscite (van Klinken and Bourchier, 216).
158
159
Ibid., 10; see also Chapter One, Legal Responsibility for Crimes Against Humanity for more
detail on the elements of command responsibility at international law. Except General Wiranto and
Sub-Regional Commander Mohammed Noer Muis, all of the other accused were charged under
both the command responsibility and individual responsibility doctrines (Commission of Experts
Report, [207]). For a comprehensive dossier of information regarding the alleged involvement of
General Wiranto and other senior Indonesian army personnel in crimes against humanity, see van
Klinken and Bourchier.
160
Stephanie Frease, Playing Hide and Seek with International Justice: What Went Wrong in
Indonesia and East Timor, ISLA Journal of International and Comparative Law 10 (2004): 283,
290; within hours of the indictments release, Fred Eckhard, Spokesman for the UN Secretary-
General, told a press conference that all indictments produced by the SCU were issued by the
Prosecutor-General of Timor-Leste, rather than by UNMISET. The Prime Minister of Timor-Leste,
Mari Alkatiri, then berated the UN for abandoning its responsibility towards the justice process.
East Timorese President Xanana Gusmao also claimed it was the responsibility of the international
community to pursue justice through judicial processes that they had in fact created (Bowman, 397;
Jrvinen, 52).
161
Commission of Experts Report, [70]-[73].
162
If the Prosecutor-General of Timor-Leste were to forward the arrest warrant to Interpol for
worldwide distribution, Wiranto and his co-accused would risk provisional arrest if they travelled
outside Indonesia (Lao Hamutuk, The Special Panels for Serious Crimes Justice for East
Timor?; Interpol, Fact Sheet: Notices; Interpol, Wanted).
163
Commission of Experts Report, [107]; Hirst and Varney, 17-18; of the approximately 1400
murders committed during the 1999 violence, at the conclusion of the Serious Crimes process only
572 had been the subject of indictments (Hirst and Varney, 30).

subject of indictments, for similar reasons.
164
Third, a loophole developed whereby
those perpetrators of serious crimes such as murder who were consequently ruled
ineligible for the CAVRs Community Reconciliation Processes were also not
captured by the SCUs prosecution strategy, due to financial and resource
constraints in pursuing lowest-profile suspects.
165
Therefore, whilst 84 individuals
were convicted by the Special Panels, many potential suspects also escaped trial.

A further point relates to the nature of the charges actually laid. In many cases the
political significance of securing convictions for crimes against humanity was
sacrificed for simple murder charges, so as to ensure a cheaper or faster trial.
166

Similarly, war crimes were not the subject of SCU indictments, despite being within
the jurisdiction of the mechanisms.
167
As with the above problems, financial and
time constraints led to the adoption of this strategy, although a number of other
factors were also significant. The inexperience of some UN investigators in pursing
complex international-law based cases, the fact that at any one time the SCU only
ever comprised 12 international investigators covering crimes committed in all 13
districts of Timor-Leste, and the constant speculation over the future lifespan of the
Serious Crimes process during its operation contributed to this more streamlined
prosecution strategy being adopted.
168

Although it is has been argued that proceedings within the Special Panels, when
they did go ahead, represented a credible justice process that conformed to
international standards,
169
the trials were not without their problems. Again,
foremost amongst these was a lack of financial and human resources.
170
This
shortcoming was especially acute for the Court of Appeal, which did not operate

164
These crimes include torture, sexual offences, destruction of property, and deportation cases,
which were generally not pursued in investigations unless they were attached to murders, even if
they might otherwise have formed elements of crimes against humanity (Hirst and Varney, 8, 19).
The Commission of Experts Report (at [107]) lists the outstanding cases as including 60 possible
charges of rape or gender-based crimes, and possibly hundreds of cases of torture and other acts
of violence.
165
Carolyn Graydon, interview by author, Melbourne, 26 May 2006; the CAVR also created a
procedure whereby if more evidence came to light through the Community Reconciliation Process
that changed the classification of a less-serious crime to a serious crime, then the incident should
be referred to the SCU for prosecution. Of the 27 cases referred by the CAVR, none was ever
prosecuted, due to a lack of resources and the expiry of the SCUs mandate (Commission of
Experts Report, [107]). A paradoxical situation therefore arose whereby the perpetrators of less-
serious crimes had to submit to a justice procedure, whereas the perpetrators of more-serious
crimes did not.
166
Hirst and Varney, 7, 17.
167
Ibid., 7; it has been suggested that if the 1999 violence was classified as an armed conflict (one
of the elements of a war crime, as required under the Rome Statute, Article 8, and the Geneva
Conventions, Article 2), this may have in fact strengthened the official Indonesian position that the
violence consisted of a series of clashes between rival East Timorese groups, rather than a
premeditated campaign of destruction and intimidation. On this point, see Chapter One,
International Crimes Committed in 1999.
168
Hirst and Varney, 19-20; Commission of Experts Report, [60].
169
Commission of Experts Report, [357]; Bowman, 387-388; Jolliffe, Human Rights Abuses and
Impunity in East Timor - The Living Memory Project, speech delivered at the National Library of
Australia, Canberra, 27 September 2006.
170
Judicial System Monitoring Programme, Submission to the United Nations Commission of
Experts, 5.

between November 2001 and June 2003, due to a shortage of international
judges.
171
Moreover, in the two Trial Courts, no administrative support was
provided to the judges,
172
translation and interpreting services were manifestly
inadequate,
173
and the transcription of judgements was sometimes delayed, or
absent altogether.
174

Financial resources also contributed to a disparity in the standard of legal
representation between the prosecution teams and defendants, however under-
funded the prosecution lawyers may have been. The Defence Lawyers Unit (DLU),
created by UNMISET in September 2002, was severely understaffed, initially
employing only one defence lawyer, which eventually grew to seven by April
2005.
175
The lawyers employed were generally inexperienced in dealing with the
nature of their clients charges
176
and were not provided with interpreting and
translation assistance, administrative support, or travel assistance in order to meet
clients.
177
Also notable was the lack of defence witnesses for the first 14 trials that
took place in the Special Panels.
178
Access to evidence, and not merely suspects,
from Indonesia has been a significant problem faced by the Serious Crimes
regime.
179

Finally, criticism has also been made of the jurisprudence of the Special Panels.
The root of this problem is apparent from the fact in January 2005 it was
announced that all 22 East Timorese judges, some of whom had sat on the Special
Panels, had failed their probationary legal exams. 19 of the judges were hence
stood down from their duties pending more training.
180
Moreover, with the
international judges on the Panels, UNTAET initially struggled to find Portuguese-
speaking judges with the requisite grounding in international law to accept posts in

171
Ibid.; a lack of judges was also a problem within the two Trial Courts, from time to time
(Bowman, 389-390; Judicial System Monitoring Programme, Submission to the United Nations
Commission of Experts, 5).
172
See Commission of Experts Report, [127], for more detail.
173
Experts, 5. This problem was particularly significant, considering UNTAET regulations specified
that the Courts must provide translation and interpreting services covering all four official languages
of the Special Panels: Portuguese, Tetum, Indonesian and English (Bowman, 390). For example,
see Public Prosecutor v Paulino De Jesus (18 November 2003, Trial Court), during which the
language used in the hearing could not be understood by the defendant or his family members in
the court gallery.
174
Bowman, 390; Hirst and Varney, 23; The Universal Declaration on Human Rights, Article 10,
guarantees the right to a fair and public hearing. This arguably includes the right of the parties and
the general public to see the way in which justice is administered, and to know the reasons for a
judicial decision (Amnesty International and Judicial System Monitoring Programme, [3.8]).
175
Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor?; Commission
of Experts Report, [141]. By the closure of the Serious Crimes Process, the seven defence lawyers
were accompanied by three defence assistants, two defence investigators, two
interpreters/translators and five other language, logistics and administration assistants.
176
Commission of Experts Report, [367]; Hirst and Varney, 20.
177
Hirst and Varney, 20; Bowman, 392; Lao Hamutuk, The Special Panels for Serious Crimes
Justice for East Timor?.
178
Bowman, 392; a number of potential defence witnesses were located in West Timor at the time
of the first trials (Hirst and Varney, 20-21).
179
180
Roper and Barria, 530-531; Commission of Experts Report, [135].

Timor-Leste,
181
hence some earlier decisions making little reference to
international criminal and humanitarian law precedent.
182
Three specific examples
of decisions that have been heavily criticised are: first, the overly onerous test used
by some judges to satisfy a request for an arrest warrant the East Timorese
Deputy General Prosecutor had complained that the legal burden to be satisfied for
the granting of an arrest warrant was practically the same level as that required for
a guilty verdict.
183
Second, inconsistent sentencing decisions evinced little
coordination between judges.
184
A third and most important example was an
Appeals Court decision in 2003 whereby the judges chose to apply Portuguese,
rather than Indonesian law, in direct contravention of UNTAET Regulation
2000/15.
185

Jakarta ad hoc Human Rights Court: Summary of Proceedings

The Indonesian Attorney-Generals office sought the prosecution of 18 defendants
in the ad hoc Court over the course of 12 trials, commencing in March 2002.
186

Those indicted were primarily members of the police and military who were in
command at the time of the violence, in addition to a militia leader, the Regents of
Covalima and Liquia, and the former civilian Governor of East Timor.
187

The trials led to only six convictions, all of which resulted in appeals to the High
Court of Human Rights, and then to the Indonesian Supreme Court. Of the six
appeals, five convictions were overturned.
188
Only the conviction of East
Timorese-born militia leader, Eurico Guterres,
189
was upheld. Guterres began
serving a 10-year jail term for crimes against humanity in May 2006.
190

Flaws in the Proceedings: Jakarta

181
Commission of Experts Report, [129]; Amnesty International and Judicial System Monitoring
Programme, [3.4].
182
Bowman, 391; Commission of Experts Report, [131].
183
184
185
Amnesty International and Judicial System Monitoring Programme, [3.11]; in the case of
Prosecutor General v Armando dos Santos (15 July 2003, Court of Appeal), on appeal the Court
replaced the defendants conviction for murder with genocide, despite this crime failing to exist
under Indonesian law (which was to continue to apply unless subsequently overridden, according to
UNAET Regulation 1999/1). The Court argued that UNTAET Regulation 2000/15 (establishing the
Special Panels and Serious Crimes Unit) was unconstitutional in its application to crimes committed
during 1999, due to it breaching an East Timorese constitutional prohibition of the non-retroactivity
of criminal laws. Hence the court employed genocide, which exists under Portuguese law, as the
new charge. The potentially serious implications of the decision were in part resolved by a law
adopted by the National Parliament on 8 October 2003 (Amnesty International and Judicial System
Monitoring Programme, [3.11]).
186
Jrvinen, 45.
187
Commission of Experts Report, [169]-[170]; also provided here is a full list of indicted suspects
and their charges.
188
189
Guterres is the former commander of Aitarak, a notorious Dili-based pro-Indonesia militia group,
and the former deputy commander of the Pasukan Perjuangan Integrasi (Integration Struggle
Force) van Klinken and Bourchier, 164-167.
190
Anggota Komisi I DPR Simpati pada Guterres, Gatra, 9 May 2006.

The ad hoc Court trials and their subsequent appeals have been widely denounced
by UN member states, international NGOs and human rights advocates as a failure
of justice, due to the scant respect that was paid to international standards of
criminal procedure, and the eventual acquittals of all defendants except Eurico
Guterres.
191
Moreover, those who were convicted at first instance in most cases
received sentences well below the minimum length prescribed by legislation.
192

Critics have alleged that the Indonesian government did just enough to satisfy the
international community that a satisfactory justice process had been carried out,
including the holding of the KPP-HAM investigation and the nominal holding of
trials, without having any real intention to bring the perpetrators to justice.
193

The bases of criticism of the trials have been numerous. They begin with the
original legislative mandate given to the ad hoc Court, as it could only try acts that
occurred during either April or September 1999.
194
This meant that the court was
effectively only able to indict those alleged to have failed to prevent the violence as
it was taking place, rather than those military and civilian officials alleged to have
been personally involved in setting up the militia operations.
195
Looking exclusively
at these two one-month periods accorded with the official Indonesian government
stance that the violence took place between warring East Timorese factions, with
the TNI merely neutral observers. No systematic and organised pattern of human
rights abuses by the Indonesian military could therefore be established.
196

Although the findings of the KPP-HAM investigation (the basis of the decision to
establish the ad hoc Court) have been regarded as a credible representation of the
nature of human rights violations in East Timor during 1999,
197
these findings were
scarcely used at all in the framing of indictments. In particular, only four of the
thirteen most prominent (and 670 overall) cases identified in the report were the
subject of prosecutions by the Attorney-Generals office - incidents that occurred in
only three of East Timors thirteen districts.
198
Moreover, most of the 32 high-
ranking civilian and military officials named in the KPP-HAM report, in addition to

191
Cohen, ii; Commission of Experts Report, [370]; Above the law; Indonesias security forces, 48;
Roper and Barria, 533; Report of the Secretary-General on justice and reconciliation for Timor-
Leste, [14]; Linton, 357.
192
Cohen, 13; all those defendants found guilty by the ad hoc Court, except Eurico Guterres, were
sentenced to either three or five years imprisonment, when their crimes against humanity
convictions carried a minimum ten year sentence (Commission of Experts Report, [188]).
193
Harris-Rimmer; Graydon; Robinson, East Timor 1999, 273.
194
Nevins, 162; Linton, 357.
195
Cohen, 11; International Crisis Group, Indonesia: Implications of the Timor Trials, International
Crisis Group Briefing Paper, Jakarta and Brussels: International Crisis Group, 2002, 4, 13; James
Dunn, interview by author, Melbourne, 26 May 2006.
196
Commission of Experts Report, [225]; International Crisis Group, 4, 12; for an account of the
commonly-held Indonesian position, see Muladi, 17-21.
197
Hirst and Varney, 4; Report of the Secretary-General on justice and reconciliation for Timor-
Leste, [14]; Commission of Experts Report, [368]; Harris-Rimmer.
198
Amnesty International and Judicial System Monitoring Programme, [5.2]-[5.3], [6.3]; the four
incidents that were the subject of prosecution were the Liquia and Suai Church massacres, and
the attacks on the residences of Manuel Carrascalo and Bishop Belo.

General Wiranto, were never even indicted by prosecutors.
199
Only mid-level
perpetrators were the subject of prosecution, rather than those at the top of the
chain of command.
200

Undoubtedly the most common basis for criticism of the trials was the manifest lack
of commitment from the prosecution. Avoidable weaknesses in the prosecution
case were found in almost all instances, including the drafting of generic
indictments that unnecessarily created multiple burdens of proof for prosecutors,
201

a failure to use all available evidence,
202
the use of other indictees as prosecution
witnesses,
203
counsel often leaving much of the questioning of witnesses to
judges
204
and the use of an unworkable prosecution strategy that focussed on
individual incidents rather than the systematic nature of the crimes as documented
in the KPP-HAM report and by international experts.
205
Some observers conclude
that a lack of political will on the part of Indonesian government, in particular the
office of the Attorney-General, was to blame,
206
although the presence of direct
political (or military) pressure on prosecutors is of course very difficult to prove. It
should be noted that a number of the judges worked extremely hard to make up for
deficiencies in the prosecution case, and hence a few significant convictions at first
instance could be obtained.
207
These efforts most notably included the guilty

199
Cohen, 14.
200
Amnesty International and Judicial System Monitoring Programme, [8]; Dunn, interview by
author.
201
Amnesty International and Judicial System Monitoring Programme, [8]; Cohen, 51-52. The
indictments used in the trials were mass produced and were not tailored to each individual
defendants circumstances. In almost all cases the indictee was charged with command
responsibility for a failure to prevent crimes against humanity committed by his subordinates,
meaning the prosecution had to prove the existence of 1) a chain of command; 2) crimes against
humanity and 3) a failure to control, as required by the Rome Statute, Articles 7 and 28. For a
comprehensive comparison of the ad hoc Court indictments with SCU indictments, see Amnesty
International and Judicial System Monitoring Programme, [7.1].
202
Commission of Experts Report, [371]; Robinson, East Timor 1999, 273; specifically, Cohen (at
14) lists the failure of the prosecution to use evidence derived from 1) the KPP-HAM report; 2)
UNTAET documents; 3) any independent investigation (such as the ICIET Report or the Report of
the Special Rapporteurs see note 124 (above)); 4) many potential East Timorese witnesses, due
to the courts failure to employ teleconferencing facilities until the very end of the trials; 5) previously
concluded trials in the ad hoc Court; and 6) international observers of the Popular Consultation.
203
For example, during the trial of Tono Suratman (in which he was acquitted), 18 of the 26
witnesses were TNI soldiers, militia members, or civilian officials, including six witnesses who were
defendants in other ad hoc Court trials (Amnesty International and Judicial System Monitoring
Programme, [9.2]).
204
Cohen, 51.
205
Lindsey; Cohen, 14-15; prosecutors did not use techniques developed earlier in the
jurisprudence of the International Criminal Tribunals for Rwanda and Yugsolavia (ICTR and ICTY)
in establishing a systematic pattern of human rights violations in order to prove that these
constituted crimes against humanity. The prosecution strategy instead accorded with the official
Indonesian government position, presented above. This may have been a deliberate move, or
alternatively merely as a result of an honestly-held belief, like many Indonesians, that there were
never any crimes against humanity committed in East Timor (Cohen, 52).
206
Commission of Experts Report, [259]-[260], [375]; Cohen, 13; Linton, 357-358; Amnesty
International and Judicial System Monitoring Programme, [6.3].
207

verdict and three-year sentence imposed on Adam Damiri,
208
despite the
prosecutions extraordinary step in seeking an acquittal, on the basis that it had not
proved any of the charges against the defendant.
209
However, in other cases
where the judges were not quite as resourceful, or where they shared the
commonly-held view that the violence was of a sporadic and spontaneous nature,
convictions could not be obtained.
210

The trials were also characterised by the intimidation of judges and prosecution
witnesses.
211
The TNI maintained a constant and overbearing presence in the
courtrooms, with Kopassus and other soldiers brazenly displaying their weapons
during proceedings.
212
Military defendants would also visit the other courtrooms
when their trials were not in session.
213
There is evidence of a direct campaign of
intimidation against judges who were likely to support convictions, through
threatening meetings, phone-calls and emails.
214
This atmosphere was also hardly
conducive to the comfort of prosecution witnesses. East Timorese victim-
witnesses were accommodated in a safe-house at the Polri (Indonesian Police)
compound in Jakarta, complete with a sign on the door of their quarters to that
effect.
215
When arriving at the airport, the names of witnesses were sometimes
announced over the public address system.
216
It is likely that the evidence such
witnesses gave was compromised by fears for their safety. Moreover, perception
of security risks in Jakarta prevented many prosecution witnesses from making the
trip from East Timor at all.
217

Finally, the trials in the ad hoc Court displayed flaws that may have been
unavoidable, given the inherent problems within the Indonesian legal system.
218

Possibly contributing to the unjust results in a number of the trials, these problems
include: 1) the tendency in many instances for judges and prosecutors to be
promoted not on the basis of their skill, but rather on their propensity to follow
orders from within their own departments and from the political elite;
219
2) the
inexperience of most Indonesian judges with international humanitarian and human
rights law jurisprudence;
220
3) the general skill and numerical imbalance between

208
For more information linking Damiri (former Commander of the Udaya Military Region, which
encompassed East Timor) to crimes against humanity committed in Timor-Leste, see van Klinken
and Bourchier, 160-163.
209
Cohen, 12-13.
210
Amnesty International and Judicial System Monitoring Programme, [9.8].
211
Cohen, 14.
212
Graydon; Roper and Barria (at 532), note that three-quarters of the court gallery generally
consisted of TNI soldiers and officers.
213
Cohen, 56.
214
Ibid., 57.
215
216
Cohen, 55.
217
Ibid.
218
Hirst and Varney, 4; Kent, interview by author.
219
Cohen, 47-48; Amnesty International and Judicial System Monitoring Programme, [6.3];
Commission of Experts Report, [240], [259].
220
Roper and Barria, 532; Amnesty International and Judicial System Monitoring Programme, [6.4];

lawyers for the prosecution and defence in post-Suharto Indonesia;
221
4) a lack of
resources available to prosecution lawyers and judges;
222
and 5) a culture of
deference within the Attorney-Generals office toward the wishes of the military
establishment
223
(considering that, for the 32 years of Suhartos rule, the Attorney-
General had almost always been a high-ranking military officer).
224
Therefore,
apart from problems unique to the ad hoc Court, a number of systemic problems
within the Indonesian legal system may have meant that human rights trials of mid
to high-ranking military, police and civilian officials were never going to be
successful, regardless of the forum.

Conclusion: Evaluation of the Dili and Jakarta Trials in light of Criminological
Justifications

As a means of reckoning with the serious crimes committed in 1999 in Timor-
Leste, both UNTAET and the Indonesian Government initially committed to criminal
trials of the alleged perpetrators. Criminal trials and custodial sentences have a
number of theoretical justifications,
225
including retribution (punishment of the
perpetrators),
226
deterrence (prevention of crimes in the future),
227
rehabilitation of
perpetrators (so they may eventually re-enter society peacefully),
228
strengthening
the rule of law (the notion that the law applies equally to all, and hence all crimes
are punished equally),
229
and the creation of a historical record of the crimes.
230

However, it is arguable, based on the results of the two judicial processes, that
very few of these aims were achieved. The inability of the SCU to complete its
investigations, the incapacity of the Special Panels to try indictees out of its
jurisdiction, and moreover the failure of the Jakarta ad hoc Court and subsequent
appeals to secure the conviction of a single Indonesian national (except East
Timorese-born Eurico Guterres) has effectively resulted in a state of impunity for
many of the perpetrators of the serious crimes committed in 1999, and their

221
Cohen, 49-50, 54; during Suhartos New Order regime, often all that prosecution lawyers had to
do in order to secure a conviction was to merely draft the indictment. Hence highly-skilled lawyers
were not needed on prosecution teams. Although the situation is slowly changing, in Indonesia
today most of the best lawyers work either as defence counsel or in NGOs: other recent examples
of the relative superiority of defence counsel vis--vis prosecutors have been the trials of terrorist
suspects, including the Bali bombers (Lindsey).
222
Cohen, 54.
223
Ibid., 49; Commission of Experts Report, [259].
224
Roper and Barria, 532.
225
Further discussion on the justifications of criminal trials, particularly in the context of a
comparison with restorative justice processes (such as truth commissions and amnesties), is
provided in Chapter Five, Amnesties, Pardons or Criminal Trials? Impacts on Nation-Building from
a Theoretical Perspective.
226
Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass
Atrocity, Northwestern University Law Review 99 (2005): 539, 559.
227
Wayne Elwood, Crime & Punishment: recent decades have witnessed horrible atrocities. But a
new system of international justice is slowly rising from the carnage, New Internationalist, 1
December 2005, 2.
228
Kiss, 11.
229
Albert V. Dicey, Introduction to the Study of the Law of the Constitution, 10
th
ed., London:
Macmillan, 1959, 202-203.
230
Drumbl, 593.

superiors. That most of the leading military, police and civilian suspects have not
been convicted for their alleged actions means that in response to the theoretical
aims listed above:

serious domestic and international crimes, including crimes against humanity,
have gone unpunished;
some members of the TNI and militia groups will arguably not be dissuaded
from carrying out violent actions of a similar nature in the future;
231

these suspects have not been subject to rehabilitative measures, as were the
perpetrators of less-serious crimes, through the CAVRs Community
Reconciliation Process;
232

the development and strengthening of the rule of law has been severely
compromised in Timor-Leste,
233
where the communitys general view is that
one group of perpetrators (lower-level East Timorese militia members) has
been punished, whilst a second group (Indonesian military and police officers)
has escaped sanction;
234
and,
a complete historical record, confirmed by legal evidentiary burdens, has not
been created of the crimes, especially for the Jakarta trials.
235
It is significant
that the ad hoc Court trials served to disseminate and legitimise (at least for a

231
For example, some militia members who returned from exile West Timor from 2000-2002 have
been accused of fostering regional instability (Gusmao, Considering a Policy of National
Reconciliation, 107-108). There has also been speculation that a failure in deterrence has
contributed to the violence witnessed in Timor-Leste during April and May 2006 (Dunn, interview by
author; Amnesty International, Timor-Leste: All parties must act resolutely to ensure justice for both
current and past violations of human rights, Available:
http://web.amnesty.org/library/Index/ENGASA570022006?open&of=ENG-2AS (5 September 2006);
East Timor Action Network, ETAN Statement on Recent Events in Timor-Leste, Available:
http://etan.org/news/2006/05dili.htm (10 May 2006); Jolliffe, Human Rights Abuses and Impunity).
Finally, Amnesty International and Judicial System Monitoring Programme, Appendix I, note that
whilst his appeal was pending in December 2003, Eurico Guterres was seeking to establish a pro-
Indonesian militia group in West Papua; additionally, in 1999, after the Indonesian military left East
Timor, Major General Adam Damiri and Brigadier General Tono Suratman were co-opted to assist
military operations against pro-independence groups supporters in Aceh.
232
Kent, Community views of justice and reconciliation in Timor-Leste, 62; see also Chega!, Part
9, 33-34, 37-38, on the rehabilitative function of the Community Reconciliation Process for
deponents of less-serious crimes.
233
234
Kent, Community views of justice and reconciliation in Timor-Leste, 62; Powell, Timors Full
Horror Revealed, 25; Harper, 158. Kent (Community views of justice and reconciliation in Timor-
Leste, 62) notes that some East Timorese perpetrators found it confusing or unjust that only the
little people should be held to account for their actions, while the big people, those who
orchestrated the violence in 1999, continued to live with impunity There was a sense that these
[fugitive] leaders continued to laugh at them behind their backs. Note however that it has also
been argued that the Serious Crimes Process has significantly contributed to the development of
the rule of law in Timor-Leste by improving the skills of judges, lawyers and other professionals
(Commission of Experts Report, [58]).
235
Commission of Experts Report, [374]; Linton, 360; with the Serious Crimes Process, although
the Commission of Experts Report (at [50]-[51]) noted that the prosecution in cases before the
Special Panels has adduced sufficient evidence to demonstrate the contextual background of the
events in 1999, substantiating an attack against the civilian population which was widespread
and/or systematic, the inability of the SCU to complete investigations into crimes other than murder
meant that the SCU [was] not able to establish a comprehensive and complete documentation of
the diverse nature of the crimes committed during 1999.

domestic audience) the Indonesian militarys erroneous view that the violence
witnessed in 1999 was the result of a civil war between East Timorese factions,
with the TNI merely innocent bystanders.
236

What direction should be taken in the future? Although the mandate of the Special
Panels has now been officially transferred to the domestic court structure of Timor-
Leste, very little work is likely to continue on unresolved investigations and cases
without significant international support.
237
Moreover, with the final appeal from the
Jakarta ad hoc Courts verdicts handed down in March 2006,
238
all domestic
judicial processes in Timor-Leste and Indonesia able to respond to the serious
crimes of 1999 have been exhausted. However, based on the deficiencies of the
two processes in meeting the theoretical justifications of criminal trials described
above, there appears the need for further institutional responses. The options that
have been proposed are outlined in Chapter Three.

236
Linton, 360; Amnesty International and Judicial System Monitoring Programme, [9.8];
237
See Hirst and Varney, 26-28; after 2002, the Serious Crimes process was almost entirely funded
by contributions from UNMISET (Sukehiro Hasegawa, The Future of the Serious Crimes Process
in Timor-Leste, Available: http://www.unmiset.org/ (20 April 2006)). However, theoretically at least,
those suspects returning to Timor-Leste face the threat of arrest and prosecution. A number of
Serious Crimes suspects returned to Timor-Leste during August, September and November 2005,
and are now in pre-trial detention (Report of the Secretary-General on justice and reconciliation for
Timor-Leste, [10]; Judicial System Monitoring Programme, Overview of the Timor Leste Justice
Sector 2005, 31).
238
Siboro.

Chapter Three

Institutional Models Favoured by Various Parties

Introduction

There has been no unified response to the problems experienced by the judicial
processes in Dili and Jakarta. Various parties, whether they be individuals,
investigative commissions, NGOs or governments, have espoused differing views
on whether or not these judicial processes should be revisited at al l, let alone the
way that this might be achieved. This chapter will set out the views of the various
players on the results of the Serious Crimes Process in Timor-Leste and the ad
hoc Human Rights Court trials in Jakarta, paving the way for a discussion of the
advantages and disadvantages of each approach and ultimately a judgement on
the most appropriate course of action in the later chapters of this thesis.

Victims of the Violence and their Family Members

Whilst it is difficult to obtain a cross-section of opinion on the Serious Crimes
Process and Jakarta trials from victims of the violence and their families,
considering there were casualties and perpetrators on both sides of the pro and
anti independence divide,
239
it is nonetheless apparent that most victims and their
families have reacted with disdain at the outcomes of the trials.
240
The sense of
injustice over the impunity enjoyed by many perpetrators has been compounded by
the fact that it has been East Timorese deponents who have been imprisoned,
whilst Indonesians have almost entirely escaped punishment.
241
In this sense, it is
widely perceived in East Timorese society that retribution has not been distributed
in an even-handed manner: the East Timorese trigger-pullers have been made
accountable for their actions, but the TNI, civil, and police officials who are alleged
to have planned and commanded the violence enjoy freedom.
242

Moreover, many victims and their families are concerned that their ordeals are
likely to compromise the chance of their children competing on an equal footing in
independent Timor-Leste.
243
For example, the death or disability of a primary-
breadwinner, the rape of an unmarried woman, the destruction of a home or of
community infrastructure can be an enormous economic burden to bear in a
developing nation. Despite Timor-Leste gaining independence, some victims feel
they are merely mate restu, or left-overs from the dead.
244
For victims, the unjust
outcomes of the Dili and Jakarta trials are only multiplied by their poverty.
245

Although no one set of measures will be able to satisfy the entire victim
community,
246
three important steps can be identified from the above

239
Frank Brennan, interview by author, Canberra, 3 May 2006.
240
Chega!, Part 11, [7]; Zifcak, 54.
241
Powell, Timors Full Horror Revealed, 25; see also Kent, Community views of justice and
reconciliation in Timor-Leste, 62, for an account of the similar views of many East Timorese
perpetrators in this regard.
242
Kent, Community views of justice and reconciliation in Timor-Leste, 62; Powell, Timors Full
Horror Revealed, 25; Harper, 158.
243
Chega!, Part 11, [12.3].
244
Kent, Community views of justice and reconciliation in Timor-Leste, 63.
245
Stanley, 593.
246
Chega!, Part 11, [7].

considerations, in order to satisfy the grievances of victims and their families. First,
the Indonesian commanders and planners of the scorched earth policy should be
brought to face effective criminal justice.
247
Dunn argues that even if pardons are
eventually granted to currently-imprisoned East Timorese militia members, the
families of many victims would still be satisfied, so long as the planners of the
violence were also prosecuted.
248
Harper further notes that in East Timorese
culture, a custodial sentence of any length would in many cases provide sufficient
satisfaction for victims, in contrast to the western criminal justice mantra that the
punishment must fit the crime.
249
Second, a comprehensive program of
reparations will assist victims families greatly in dealing with the financial legacy of
the human rights violations they have suffered.
250
Many victims have stated that
they do not care where reparations come from, as long as they receive enough
money and assistance to rebuild their lives.
251
Finally, although it is not a
universally-expressed wish, a number of victims have emphasised the importance
of confession and apology from the perpetrators.
252

Recommendations of the Commission for Reception, Truth and
Reconciliation

Part of the CAVRs mandate was to make recommendations concerning:

reforms and other measures, whether legal, political or administrative which
could be taken to achieve the objectives of the Commission, to prevent the
repetition of human rights violations and to respond to the needs of victims
of human rights violations.
253

Many of the recommendations made by the CAVR in Chega!,
254
its Final Report,
are therefore not made in direct response to the 1999 violence and the subsequent
trials of perpetrators but are instead focussed on preventing a recurrence of
violations of the past.
255
Nonetheless, the Commission makes a number of
observations regarding the SCU/Special Panels, and Jakarta ad hoc Court.
Regarding the justice process, the CAVR implores that:

[Timor-Leste] cannot be expected to bear the brunt of pursuing the daunting
task of justice on its own. [The Commission] is further concerned that the
State of Indonesia has never shown a genuine will to bring to book the
perpetrators [of serious crimes]. Therefore the Commission believes that
the definitive approach to achieve justice for the crimes committed in Timor-

247
Kent, Community views of justice and reconciliation in Timor-Leste, 64; Pigou, viii; James J.
Fox, interview by author, Canberra, 28 April 2006.
248
Dunn, interview by author.
249
Harper, 184.
250
Chega!, Part 11, [12.2]-[12.3]; Harper, 159.
251
Harper, 178.
252
Pigou, ix; Dunn, interview by author.
253
UNTAET Regulation 2001/10 (13 July 2001), Section 21.2.
254
Enough! in Portuguese.
255
Chega!, Part 11, 2.

Leste should hinge critically on the commitment of the international
community, in particular the United Nations.
256

Accordingly, the Commission recommends that:

1. The SCU and Special Panels have their mandates renewed, and sufficient
support from the UN given to ensure their effective operation;
257

2. Indonesian authorities launch renewed investigations and prosecutions of those
persons who bear command responsibility for human rights violations,
258
moves
necessarily accompanied by reforms strengthening the independence and
efficiency of the Indonesian judicial system;
259

3. Indonesia transfer those suspects indicted by the SCU to East Timorese
authorities for prosecution,
260
and moreover provide the government of Timor-
Leste access to documents detailing Indonesian administrative and military
involvement in the 1999 violence;
261

4. the Indonesian government and Indonesian businesses that profited from war-
related activities in Timor-Leste pay reparations into a trust fund for victims
established by the CAVR;
262
and,
5. third party nations endeavour to transfer those indicted by the SCU into the
custody of East Timorese authorities, or else exercise universal jurisdiction
263
in
prosecuting those indictees in their domestic courts, and moreover seek to
freeze the foreign-owned assets of suspects and place travel bans upon
them.
264

256
Ibid., Part 11, [7.1].
257
Ibid., Part 11, [7.1.1]-[7.1.2]; this recommendation urges that the mandates are not only restored
in order to investigate and prosecute those serious crimes committed in 1999, but also extended so
as to examine cases (including the incidents specifically named in [7.1.3]) from the entire period of
Indonesian occupation (1975-1999). As this thesis is primarily concerned with the events of 1999,
the recommendations pertaining to this period will be focussed upon.
258
Ibid., Part 11, [7.1.5].
259
Ibid., Part 11, [7.1.11].
260
Ibid.
261
Ibid., Part 11, [10.10]; the Report makes specific reference here to the Liquica Church Massacre
(6 April 1999); the killings at Cailaco (12 April 1999); the attack on Manuel Carrascalos house in
Dili (17 April 1999); the killing of two students at Hera, Dili (20 May 1999), the Suai Church
massacre (6 September 1999), the Maliana police station massacre (8 September 1999), the
murder of church personnel and their accompanying journalist in Lautm (25 September 1999),
massacres in Passabe and Maquelab in Oecusse (September-October 1999) and massacres in
Nitibe in Oecusse (October 1999).
262
Ibid., Part 11, [10.16]-[10.17].
263
Universal jurisdiction is the basis of jurisdiction invoked by some nation-states in conducting
domestic prosecutions for crimes which attack the interests of all states or which are against
certain fundamental principles (such as principles of human rights that have attained status as jus
cogens [peremptory norms of international law]), (Anton, Mathew and Morgan, 71, 233; see also
the International Court of Justices pronouncements in the Case Concerning the Arrest Warrant of
11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment), [2002] ICJ Rep 3, at 75-79).
The supporters of universal jurisdiction claim that it constitutes the new magic bullet in the fight
against impunity for massive violations of human rights and humanitarian law (Reydams, 1).
264
Chega!, Part 11, [7.1.12].

If such measures fail to achieve a sufficient measure of justice, the Commission
recommends that the Security Council establish an international criminal tribunal
for Timor-Leste, pursuant to Chapter VII of the UN Charter.
265

One further innovative aspect of Chega! was the identification of third party
beneficiaries (comprising nation-states and corporations) as bearing direct
responsibility for serious crimes that have been committed in Timor-Leste, not only
in 1999 but also dating back to the beginning of the Indonesian occupation.
266
The
Commission insists that:

The conflict in Timor-Leste [between 1974 and 1999] was not primarily an
internal conflict but one of foreign intervention, invasion and occupation
that violated international law and human rights which the international
community was duty bound to protect and uphold.
267

Accordingly, the Commission recommends that those nations that engaged in
military cooperation with Indonesia between 1974 and 1999 apologise to the
people of Timor-Leste, and that the Permanent Members of the UN Security
Council assist the government of Timor-Leste with the provision of reparations to
victims.
268

UN Commission of Experts

A Commission of Experts was created by the UN Secretary-General in February
2005 as a result of widespread international criticism over the performance of the
Jakarta ad hoc Court and the inability of the Special Panels to prosecute any
senior Indonesian military and police figures.
269
Its mandate was to review the
effectiveness of the two processes in achieving justice and accountability for the
crimes committed in East Timor, identifying any obstacles faced by the
mechanisms in pursuing these functions, and to make recommendations to the UN
Secretary-General in order to facilitate the accountability of perpetrators and to aid
reconciliation within Timor-Leste.
270

The Commission issued its final report in May 2005. On the SCU and Special
Panels, the Commission found that international standards were generally adhered
to.
271
However, those most accountable for the violence, suspects outside of
Timor-Leste, had not been brought to justice.
272
Moreover, the situation was

265
Ibid., Part 11, [7.2].
266
Kent, interview by author.
267
Chega!, Part 11, [1], emphasis added.
268
Ibid., Part 11, [1.6]-[1.7]. The five permanent members of the UN Security Council are China,
France, Russia, the United Kingdom and the United States.
269
Commission of Experts Report, [12]; Sarmento, 49. The Commission of Experts comprised
three legal experts from the Asia-Pacific region: Justice Prafullachandra Bhagwati (India); Professor
Yozo Yokota (Japan) and Dr Shaista Shameem (Fiji) - Commission of Experts Report, [13].
270
Ibid., [14].
271
Ibid., [357].
272
Ibid., [359]-[360].

unlikely to improve without significant international assistance.
273
In response, the
Commission recommended:

1. The UN Security Council provide sufficient financial and logistical assistance to
ensure the continuity of the work of SCU, the Special Panels and DLU until
such time as the investigations, indictments and prosecutions of those who are
alleged to have committed serious crimes are completed.
274

2. In the event that the first recommendation is not followed, the UN should
establish an alternative justice mechanism within the domestic judicial
framework of Timor-Leste to ensure the continuation of investigations and trials.
Such a mechanism would still require continued assistance from the
international community.
275

Regarding the Jakarta ad hoc Court, the Commission was particularly scathing.
Prosecutions were labelled manifestly deficient and the entire process was said to
have been seriously flawed and not in conformity with national and international
legal standards.
276
In response, the Commissions recommendations to Indonesia
were:

1. That a team of preferably Asian legal experts be assembled to provide the
Office of the Attorney-General with independent specialist legal advice on
international criminal law, international humanitarian law and international
human rights standards, including procedural and evidentiary standards.
277

2. That the Attorney-Generals office review all prosecutions in the ad hoc Court,
and where appropriate, conduct new trials of the indictees, including de novo
trials.
278
Any retrials must accord with acceptable national and international
standards.
279

3. Under the guidance of SCU and UN officials, evidence and files relating to the
Wiranto et al indictment
280
be submitted to the Attorney-General for
prosecution, given that this evidence appears sufficient to support successful
prosecutions.
281

4. The Indonesian government submit a report to the Secretary-General on any
new investigations and trials or retrials carried out as a result of the
Commissions report.
282

5. The Indonesian government implement the Commissions recommendations
within six months.
283

273
Ibid., [366].
274
Ibid., [505].
275
Ibid., [506].
276
Ibid., [371]; [515].
277
Ibid., [514].
278
A de novo trial is a new trial from the beginning, where the court is not confined to evidence that
was presented in the original hearing (Butterworths Concise Australian Legal Dictionary, 3
rd
ed.,
Sydney: LexisNexis Butterworths, 2004, 113).
279
280
See Chapter Two, Flaws in the Proceedings: Dili.
281
Commission of Experts Report, [519], [521].
282
Ibid., [523].
283
Ibid., [524].

Further, the Commission insisted that:

Where possible, UN member states should exercise universal jurisdiction in
seeking prosecutions of those accused of the violence;
284
and
if the above recommendations were not followed by the governments of Timor-
Leste and Indonesia within the recommended timeframes, the Security Council
should:
a) establish an ad hoc International Criminal Tribunal for East Timor;
285
or
alternatively,
b) use the International Criminal Court to investigate and prosecute the
accused.
286

Non Government Organisations (NGOs)

Many NGOs have been particularly scathing of the results of the justice processes.
New York-based Human Rights Watch has declared that Indonesias trials for
crimes in East Timor speak for themselves: the process was a sham.
287
Timor-
Lestes Lao Hamutuk
288
has labelled the trials a highly flawed and insincere
process,
289
and Amnesty International together with Timor-Lestes Judicial System
Monitoring Programme have found that Indonesia has fallen well short of the
standard [of justice] set by the UN Secretary-General
290
and that to hold new trials
in Indonesia would require not only substantial reform of the Human Rights Courts,
but of the whole justice system.
291
Moreover, those and other organisations have
argued that without significant international assistance, currently there does not
exist the requisite institutional capacity in Timor-Leste to conduct further serious
crimes cases.
292

Accordingly, the primary wish of most East Timorese, Indonesian
293
and
international NGOs is the establishment of an international criminal tribunal for

284
Ibid., [527].
285
Ibid., [525].
286
Ibid., [526].
287
Human Rights Watch, East Timor: UN Security Council Must Ensure Justice, Available:
http://hrw.org/English/docs/2005/06/28/eastti11231_txt.htm (20 March 2006).
288
Lao Hamutuk is the East Timor Institute for Reconstruction, Monitoring and Analysis, a Dili-
based NGO.
289
Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither.
290
Amnesty International and Judicial System Monitoring Programme, [11.1].
291
Ibid., [11.5], emphasis added.
292
Mary Corkery et al., NGOs Write Security Council and Secretary-General on Commission of
Experts & Timor Justice, Available: http://www.etan.org/news/2005/08ngos.htm (1 April 2006);
Amnesty International, Timor-Leste: Security Council inaction on justice for Timor-Leste leaves
fight against impunity in limbo, Available: http://web.amnesty.org/library/Index/ENGASA570042005
(25 March 2006); Amnesty International and Judicial System Monitoring Programme, [4], [11.1].
293
Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, Report of
Proceedings, Paper produced as a result of the Symposium on Justice for International Crimes
Committed in the Territory of East Timor, University of Melbourne, Melbourne, 16-17 January 2003,
[4.3], note that in 2002, 100 Indonesian NGOs called for the establishment of an international
criminal tribunal, as the preferred method of bringing the perpetrators bearing the greatest
responsibility for serious crimes to trial.

East Timor,
294
as suggested in both the CAVR and Commission of Experts
Reports. Such a move must be initiated, and funded, by international donor
nations and the UN,
295
and the tribunal could be located in Dili itself, in Indonesia,
or in a western nation.

It has been argued that further criminal prosecutions must be carried out, or else:

this will provide fertile grounds for mistrust between social groups, and
towards state institutions, to flourish. Failure to punish perpetrators of past
human rights abuses will fail to deter future violence and will perpetuate
future abuse. This is true for the people of East Timor as well as members
of the TNI and militia groups throughout Indonesia.
296

As a result, a number of NGOs have pointed to the violence that has gripped
Timor-Leste in April and May 2006 as partially contributed to by a lack of rule of
law and the presence of a culture of impunity for past violations.
297
It has been
suggested that if the UN has been prepared to establish an Independent Special
Inquiry Commission to review crimes committed during the current crisis, why
should it not be able to establish an international justice mechanism to deal with
the violence of 1999?
298

Catholic Church

The views of the Catholic Church on the issue of justice carry great weight,
considering the Church is the single biggest institution in Timor-Leste, with 90
percent of the population being nominally Catholic.
299
Most prominent Church
figures have espoused the view that a UN-backed international criminal tribunal is
now required as a final resort to deal with the perpetrators of the crimes, in light of
the arguably unjust results of prior judicial mechanisms.
300
Echoing the views of

294
Ibid., [3.4]; Human Rights Watch, East Timor: UN Security Council Must Ensure Justice;
Corkery et al; Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither; Maria
Afonso de Jesus et al., Timor-Leste National Alliance for an International Tribunal: Letter to UN
Secretary-General, Available: http://etan.org/news/2006/01ngo.htm (20 March 2006). Some
organisations have cautiously supported the idea of giving Indonesia another chance to try its own
nationals, if a rigid compliance system is imposed. However, this does not detract from their
primary desire for an international criminal tribunal (Nina Bang-Jensen et al., Intl NGOs write SG
on Commission of Experts report, Available: http://etan.org/news/2005/07ngo2.htm (20 March
2006); Amnesty International, Timor-Leste: Security Council inaction on justice for Timor-Leste
leaves fight against impunity in limbo).
295
Bella Galhos, Maria Afonso de Jesus, and Charles Scheiner, Lao Hamutuk letter to SRSG on
justice, Available: http://www.laohamutuk.org/Justice/05LHtoSRSG.html (20 March 2006); Afonso
de Jesus et al.
296
Marshall.
297
Amnesty International, Timor-Leste: All parties must act resolutely to ensure justice for both
current and past violations of human rights; see also East Timor Action Network, ETAN Statement
on Recent Events in Timor-Leste.
298
Marshall.
299
Murdoch, 14.
300
Alberto Ricardo da Silva and Basilio do Nascimento, The Catholic Church of East Timor:
Position on Justice for Crimes Against Humanity, in Prafullachandra Bhagwati, Yozo Yokota, and
Shaista Shameem, Report to the Secretary-General of the Commission of Experts to Review the

many NGOs described above, Father Martinho Gusmao, director of the Churchs
Justice and Peace Commission, declares [t]his is not just a problem between East
Timor and Indonesia. They were crimes against humanity and this is a big
international issue.
301
Moreover, as the Bishops of Dili and Baucau have stated in
support of an international resolution to the issue of justice:

The Catholic community will not condone crimes against humanity. The
victims who suffered these crimes, their families and the people in whose
names such crimes are committed deserve nothing less.
302

President Xanana Gusmao and the Executive Government of Timor-Leste

Xanana Gusmao was elected the first President of Timor-Leste in 2002.
303
Despite
his background as a guerrilla fighter with Falintil
304
and his status as a resistance
hero,
305
Gusmao has been quick to campaign for reconciliation with Indonesia over
the atrocities committed during the occupation. On numerous occasions, Gusmao
has espoused his support for a pragmatic solution, whereby Timor-Lestes relations
with Indonesia take precedence over the desire for perpetrators to held criminally
accountable for human rights violations.
306
As President Gusmao advocates:

We must respect the courage of the Indonesians in accepting our
independence and not disrupt their progress towards democratisation by
demanding formal [criminal] justice.
307

At stake is the maintenance of Timor-Lestes most important international alliance
in economic and security terms,
308
and the repatriation of a number of militia
members still living in West Timor.
309
Gusmao therefore favours accepting the
results of the judicial processes that have taken place in both Indonesia and Timor-

Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, UN
Doc S/2005/458 (26 May 2005), 146; Smythe, 210; Murdoch, 14.
301
Murdoch, 14.
302
da Silva and do Nascimento, 146.
303
Profile: Xanana Gusmao.
304
See Chapter One, note 45.
305
Harris-Rimmer; Profile: Xanana Gusmao.
306
Powell, Timors Full Horror Revealed, 25.
307
Murdoch, 14.
308
Gusmao, Volunteerism Achieving Reconciliation and Peace, speech to the Seventeenth
World IAVE Volunteer Conference, Seoul, Korea, 12 November 2002, in Timor Lives! Speeches of
Freedom and Independence, Alexandria, NSW: Longueville Media, 2005, 81. It has also been
alleged that the freedom and political futures of senior Fretilin leaders may be at stake if a judicial
mechanism (such as an international criminal tribunal) with a jurisdiction stretching back to the
Fretilin-UDT conflict in 1974-75 is established, thereby constituting another reason for Xananas
pragmatic stance on the issue of justice. As Dunn notes, accusations of crimes against humanity
committed by Falintil forces is a very sensitive political issue in Timor-Leste, especially considering
Xanana himself was the commander of a battalion with a brutal reputation (Dunn, interview by
author). Xanana has previously stated I will not accept the possibility of a Timorese becoming a
possible defendant in [an] international tribunal, (Gusmao, Considering a Policy of National
Reconciliation, 120).
309
Gusmao, Considering a Policy of National Reconciliation, 114.

Leste,
310
and also mitigating them by establishing a regime of amnesties and
pardons to free some of those East Timorese militia members currently imprisoned
after being convicted in the Special Panels, and to indemnify other serious crimes
suspects who have not yet been prosecuted.
311
Additionally, East Timorese
victims and their families must be content with efforts by President Gusmaos
government to develop public infrastructure, rather than demand formal reparations
from Indonesia or western nations.
312
Gusmao has stood by this overall position in
the face of significant criticism from international and domestic NGOs, who argue
that aspects of his reconciliation policy breach international human rights
standards.
313
He responds to these criticisms by declaring:

We have our own experience of forgetting the past. We have our own
experience of forgiving each other mutually. We do not need the standards
of other countries.
314

A telling example of Gusmaos determination to maintain his position on justice is
evident in his handling of the CAVRs Final Report. The completed Report was
delivered to the President on 31 October 2005, and was subsequently presented
by the President to UN Secretary-General Kofi Annan on 20 January 2006.
315

However, Gusmao has not yet publicly released and disseminated the report in
Timor-Leste after he had promised to do so within three months of obtaining it.
316

He has also publicly rejected the Commissions recommendations (in particular
those espousing further trials, and reparations payable to victims), accusing the
Commissioners of grandiose idealism.
317
For Gusmao, Chega! is not a source of

310
Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary-General,
UN Doc S/2005/459, Annex I (15 July 2005), 3; Report of the Secretary-General on justice and
reconciliation for Timor-Leste, [19].
311
Gusmao, Volunteerism, 80.
312
Gusmao, Considering a Policy of National Reconciliation, 115-117; Marshall; Lam.
313
Specifically, human rights advocates point to the prohibition that international human rights and
humanitarian law places on the provision of blanket amnesties for genocide, war crimes and crimes
against humanity (Simunovic, 701-703; see Chapter Five, Blanket/Conditional Amnesties and
Pardons for Serious Crimes: the International Law Position for more detail on amnesties and
pardons for international crimes at international law). Additionally, they cite The Factory at Chorzow
case as establishing an important principle of international law that states are obliged to provide
reparations for any harm or damage caused by a wrongful act or omission on the part of that state
(at 29, emphasis added).
314
315
Harris-Rimmer and Tomaras, 8.
316
Xanana Gusmao, Address by H.E. The President of the Republic Kay Rala Xanana Gusmo on
the Occasion of the Presentation of the Final Report of the Commission for Reception, Truth and
Reconciliation, speech delivered in Dili, Timor-Leste, 31 October 2005. A popular version of the
report, in Tetum, was to be produced and disseminated through a public education campaign by the
post-CAVR Technical Secretariat (Damian Grenfell, When Remembering Isnt Enough, Arena
Magazine, December 2005 January 2006, 32; Report of the Secretary-General on justice and
reconciliation for Timor-Leste, [17]).
317
John Aglionby, Row over East Timor massacre report: President accuses authors of grandiose
idealism; Decision not to publish alarms rights activists, The Guardian, 29 November 2005, 17;
note that opposition leaders in Timor-Leste have criticised President Gusmaos handling of Chega!,
in different ways. Joo Goncalves, Vice-President of the Social Democratic Party (SDP), has
criticised reconciliation with Indonesia unless [reconciliation] is combined with justice for the
victims My party strongly believes that those people who have committed crimes of genocide

evidence for further prosecutions, but rather constitutes a document valuable for its
truth-seeking function: a tribute to the resistance and the East Timorese peoples
suffering.
318

Initially established in March 2005 in what was possibly a veiled attempt to curtail
the need for the Commission of Experts report,
319
the bilateral Commission of Truth
and Friendship (CTF) with Indonesia is the East Timorese governments preferred
institutional method of addressing the justice issue.
320
The Commissions mandate
is to investigate the human rights violations that took place in 1999 in order to
create a shared historical record of the events.
321
The Commissioners can then
recommend amnesties for the deponents of serious crimes, together with
measures designed to reform the institutions that made the violence possible.
322

This power to grant amnesties to perpetrators has suspended initial plans for a
national law on amnesties, initially considered by the National Parliament of Timor-
Leste in 2004.
323
Gusmao and Indonesian President Susilo Bambang Yudhoyono
have dismissed strident criticism of the CTFs amnesty provisions from the
CAVR,
324
Commission of Experts,
325
UN Secretary-General,
326
East Timorese
Catholic Church
327
and NGOs.
328

have got to be brought to justice (Murdoch, 14). Special Advisor to the President and President of
the SDP Mario Carrascalo has stopped short of criticising Gusmaos rejection of the CAVRs
recommendations but he still opposes quarantining the report from the public, noting that the report
presents the voices of victims and their demand for justice and the government should respect this
by releasing it (Kingston, 8).
318
McWilliam.
319
Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither; Harris-Rimmer
and Tomaras, 11.
320
The CTF is the first example of a bilateral truth commission. The panel is comprised of five
commissioners each from Timor-Leste and Indonesia, and will be given access to documents and
the ability to interview persons in both nations (Thankur, 11). The Commissions mandate runs for
two years from August 2005, after it was granted a one-year extension by the governments of both
nations (Commission of Truth and Friendship, Terms of Reference for The Commission of Truth
and Friendship Established by The Republic of Indonesia and The Democratic Republic of Timor-
Leste, Available: http://www.ctf-ri-tl.org/terms_of_reference/ (17 July 2006) (CTF Terms of
Reference), [15]; Report of the Secretary-General on justice and reconciliation for Timor-Leste,
[28]).
321
CTF Terms of Reference, [14.a]-[14.b].
322
Ibid., [14.c]; Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the
Secretary-General, 5.
323
Human Rights Watch, East Timor: Reject Pardon for Most Serious Crimes, Available:
http://hrw.org/english/docs/2004/05/08/eastti8563_txt.htm (20 March 2006); Harris-Rimmer.
324
See Chega!, Part 11, [7.3].
325
See Commission of Experts Report, [338], [376].
326
See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [30].
327
See da Silva and do Nascimento, 146-147.
328
See Human Rights Watch, East Timor: UN Security Council Must Ensure Justice; Galhos,
Afonso, and Scheiner; Corkery et al; East Timor Action Network, ETAN Posts Entire Timor Truth
Commission Report on Website, Available: http://etan.org/news/2006/02indo.htm (20 March 2006);
Rizal Maslan; in particular, Timor-Lestes Lao Hamutuk has claimed that the CTF is improper on
the grounds that it undermines the judicial proceedings already underway and contradicts United
Nations Security Council Resolution 1272, which requires that the perpetrators be brought to
justice and that [the CTF] is unconstitutional since it bypassed Parliamentary authorisation and will
grant amnesty without following proper legal processes (Lao Hamutuk, Editorial: Commission of
Truth and Friendship Brings Neither).

One final point that must be noted however is that not every executive government
statement has condemned formal criminal justice in all its manifestations. In some
speeches by President Gusmao, Prime Minister Jos Ramos-Horta and other
senior cabinet figures, a sense of dissatisfaction with western governments is
evident. They claim that Timor-Leste currently has no other option but to proceed
with amnesties through the CTF and other non-adversarial measures, because the
international community has not given it any other option.
329
At the present time,
the government of Timor-Leste believes it should not have to carry the burden of
seeking further criminal justice measures, especially an international criminal
tribunal.
330
As Gusmao importantly notes:

The Commission of Truth and Friendship is not a final phase of justice.
Over time, as both [Timor-Leste and Indonesia] mature democratically,
peoples need for justice will be met. There is, after all, no statute of
limitations for such crimes. As nations become more politically mature, past
grievances and past wrongs can be righted.
331

Indonesian Government

Predictably, the recommendations of the Commission of Experts and CAVR report
have not been well received in Indonesia,
332
where the prevailing political mood is
one of denialism regarding human rights abuses in Timor-Leste.
333
The
Indonesian Government claims the trials conducted in the Jakarta ad hoc Court
were a legitimate exercise in justice and to revisit the cases would be a violation of
its judicial sovereignty.
334
Despite the wishes of some prominent Indonesians to
see the military commanders of crimes against humanity prosecuted in order to aid
the process of democratisation,
335
the government believes that the time is right for
closure of this issue.

Accordingly, Indonesia would never cooperate with moves to establish an
international criminal tribunal for Timor-Leste (especially if located within Indonesia
itself) and has lobbied for western support in the past to prevent such steps being

329
Kingston, 8; Harris-Rimmer; Graydon.
330
Gusmao, Considering a Policy of National Reconciliation, 119; Asia Pacific Centre for Military
Law and Judicial System Monitoring Programme, [3.3]; Watch Indonesia.
331
Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary-General,
6; also note here that, according to its mandate, the CTFs work is not to prejudice the continued
operation of any ongoing judicial process, presumably in reference to trials in the Dili District Court
(CTF Terms of Reference, [13.e]).
332
Patria; Parera; RI dan Timtim Kecewa Laporan Komisi Ahli PBB; in particular, the cancellation
of a meeting between Indonesian President Yudhoyono and President Gusmao after the
presentation of the CAVR report to the UN Secretary-General evinces the straining in East
Timorese-Indonesian relations that the two reports have caused (Jolliffe, Compromising Justice in
East Timor, Far Eastern Economic Review, 7 April 2006, 54).
333
Edward Aspinall, interview by author, Canberra, 27 April 2006.
334
Lao Hamutuk, The Special Panels for Serious Crimes Justice for East Timor; Harper, 162-
163.
335
Fox, interview by author.

taken.
336
The Indonesian Government instead sees the CTF as the ideal
opportunity to take the issue of justice completely off the international agenda,
337

and moreover to protect senior Indonesian military officials from crimes against
humanity trials.
338
While President Yudhoyono admittedly recognises that further
trials of some TNI suspects would benefit Indonesias international image and may
assist his 2009 Presidential election campaign platform of judicial reform, the
militarys continued influence within Indonesian politics means that further trials are
extremely unlikely.
339

United Nations Secretary-General; United Nations Missions to Timor-Leste

After a majority of UN Security Council members were uncomfortable in following
the recommendations outlined in the UN Commission of Experts Report in May
2005, they requested that the UN Secretary-General compile a report on justice
and reconciliation for Timor-Leste containing a practically feasible approach to be
followed, in light of the Reports findings and the views of the governments of
Timor-Leste and Indonesia.
340
On 26 July 2006, the Secretary-Generals report
was finally released. It contained the following recommendations relevant to the
crimes committed during 1999:

the Governments of Indonesia and Timor-Leste review the CTFs amnesty
clause,
341
in order to ensure conformity with international standards and
principles, with a view to achieving credible accountability for perpetrators;
the two Governments should strengthen the capacity of their respective
judicial systems with a view to conducting further prosecutions of the
perpetrators;
342

as part of a UN programme of international assistance for Timor-Leste, a
solidarity fund comprising voluntary contributions from UN Member States
will finance:
o a community restoration programme, comprising collective, individual
and reconciliatory measures;
343
and,

336
James Cotton, interview by author, Canberra, 26 April 2006; Diane Farsetta, Finding Justice in
East Timor, Available: http://www.etan.org/issues/h-rights.htm (3 March 2006).
337
Aspinall; Kent, interview by author.
338
Grenfell, 35.
339
Lindsey; Dunn alleges that, because of the fact that President Yudhoyono participated in the
invasion of East Timor in 1975 as a Junior Officer, and was the Commander of the notorious East
Timor 744 Battalion in the late 1970s, he wants to use the CTF to close the issue of justice for
crimes against humanity, in case he himself is implicated as a result of further investigations into
past military operations (Dunn, interview by author). For more data linking President Yudohoyono
to crimes against humanity committed in Timor-Leste, see van Klinken and Bourchier, 157-158.
340
Letter Dated 2005/09/28 From the President of the Security Council Addressed to the Secretary-
General.
341
See CTF Terms of Reference, [14.c].
342
For Indonesia, this may include prosecuting the cases of those persons indicted by [the] SCU
but residing in Indonesia and retrials of those persons previously tried before the Ad Hoc Court but
acquitted on appeal (Report of the Secretary-General on justice and reconciliation for Timor-Leste,
[37]).
343
See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [39(d)(ii)], for
more detail on the nature of the individual measures proposed.

o a justice programme, such that investigations into the crimes
committed in 1999 can be completed by a new team of international
investigators, with a view to future prosecution through the Office of
the Prosecutor-General of Timor-Leste, or examination of the cases
by the CTF.
344

The UN Security Council approved of the Secretary-Generals recommendations
on 25 August 2006. Accordingly, they will be implemented as part of the United
Nations Integrated Mission in Timor-Leste (UNMIT) from August 2006 onwards.
345

Conclusion

There exist a multitude of differing views on the future direction, if any, of the
justice process in Timor-Leste. It is evident that no one solution will please all
parties concerned. However, a means of normatively evaluating these proposals
needs to be considered, so that recourse to one or other of the models outlined is
not done on an arbitrary or subjective basis, but rather, is based upon an approach
grounded in practicality and theory. This normative evaluation will be the subject of
Chapters Four and Five.

344
Ibid., [36], [39]. Note that the Report specifically rules out a resumption of the full prosecutorial
function previously exercised by the SCU (at [36]). Further (at [19]), in response to the
recommendations outlined in Chega!, although the Secretary-General recognises that the report
has received positive recognition from civil society organizations working in Timor-Lestewhich do
not agree with certain aspects of the Governments response to the CAVR report and expect
appropriate follow-up action to be taken on the reports recommendations, he defers judgement on
the Governments response, as the Timor-Leste Parliament has not yet started debate on the
report.
345
UN Security Council Resolution 1704 (25 August 2006) at [4]: UNMIT will have the following
mandate (i) To assist in the implementation of the relevant recommendations in the Secretary-
Generals report on Justice and Reconciliation. UNMIT is the successor mission to UNOTIL
(United Nations Office in Timor-Leste).

Chapter Four

Practical Advantages and Disadvantages of the
Institutional Options

Introduction

As the preceding chapter indicates, after the results of the trials in Dili and Jakarta
a number of institutional options were identified by the major players to deal with
the serious crimes committed in 1999. These options comprised judicial
mechanisms to try and retry
346
the accused perpetrators of the crimes:

an international criminal tribunal, located in either Timor-Leste, Indonesia, or
a third state;
use of the International Criminal Court;
renewing the mandates of the SCU, Special Panels, and DLU to conduct
further hybrid trials in Timor-Leste, or alternatively, merely reactivating the
investigative function of the SCU in order to conduct domestic trials in
Timor-Leste;
judicial reform and subsequent retrials in Indonesia; and
third party states conducting domestic trials according to the principle of
universal jurisdiction.

Plus the following non-judicial mechanisms:

granting amnesties to perpetrators through the CTF model, and/or pardons
through Xanana Gusmaos Presidential mandate;
stripping the CTF of its amnesty-granting power and relying solely on its
truth-seeking function;
347

establishing a comprehensive reparations scheme to compensate victims
and their families;
apologies and confessions being granted by the perpetrators of serious
crimes, and/or apologies being given by nations who supported the
Indonesian occupation of Timor-Leste; and,
third party states using diplomatic measures to encumber the lives of
Indonesian-based suspects (eg freezing foreign assets and introducing
travels bans).

Additionally, three further options raised by academic sources, but not mentioned
in the previous Chapter, will be discussed below. These are:

346
Under international law, the principle of double-jeopardy (ne bis in idem: precluding an accused
person being judged twice for the same criminal conduct, on the same evidence) only applies to
retrials within the same domestic jurisdiction (Commission of Experts Report, [398], [401]; Amnesty
International and Judicial System Monitoring Programme, [11.6]). Therefore, prosecution of
suspects previously acquitted in Indonesia, through a reconstituted Special Panels system, would
not be precluded by such a rule. For the application of the ne bis in idem principle to potential
retrials within the Indonesian justice system, see note 410 (below), and for a comprehensive
account of the potential double-jeopardy related issues in the present case, see Asia Pacific Centre
for Military Law and Judicial System Monitoring Programme, Appendix 2.
347
Truth-seeking is the function of truth commissions (and criminal trials) whereby an investigation
and public illumination of past wrongs is carried out in order to contribute to or correct the public
historical record (Kiss, 6; Drumbl, 593). Relevantly, the CTFs mandate includes the power to
reveal the factual truth of the nature, causes, and the extent of reported violations of human rights,
that occurred in the period leading up to and immediately following the popular consultation in
Timor-Leste in August 1999 (CTF Terms of Reference, [14a]).

establishing a new kind of Community Reconciliation Process
348
that could
process remaining serious crimes cases not dealt with by prior judicial
mechanisms
349
(a non-judicial mechanism);
the use of a Rule 61-type procedure in Timor-Lestes District Courts
350
(a
quasi-judicial mechanism); and
trials of fugitive perpetrators conducted in absentia
351
in Timor-Lestes
District Courts (a judicial mechanism).

In order to identify practicable solutions to the serious crimes committed, the
procedural requirements, along with the practical advantages and disadvantages of
each of the options raised will be considered below. Practical criteria used to
evaluate the different options include:

cost;
feasibility;
potential effectiveness in the fulfilment of its function;
potential to access perpetrators based in different jurisdictions and of
different hierarchical ranks; and,
possible adverse effects on Timor-Lestes future development as a nation.

Judicial versus Non-Judicial Mechanisms: General Outcomes

Before elaborating on the specific advantages and disadvantages of each
institutional model, it will help to outline a series of general results to be expected if
a judicial, or a non-judicial, approach is followed in the instant case. Given the
positions of the Indonesian and East Timorese governments outlined in Chapter
Three, it is clear that the most negative consequence of pursuing the perpetrators
of serious crimes through judicial methods would be the adverse reaction to be
expected from Indonesia.
352
At the current stage, ill-feeling from Indonesia would
be disastrous to Timor-Lestes development as an independent nation, given that
Timor-Lestes economic and security relationship with Indonesia remains its most
important international concern.
353
Given the length of time that has elapsed since
the events of 1999 and the establishment of the initial mechanisms in Dili and

348
Community Reconciliation Agreements were the result of the CAVRs Community Reconciliation
Process, whereby the perpetrator made an agreement with their victims and representatives of the
community they harmed during 1999. Based on the agreement, the perpetrator was required to
make a formal apology, pay compensation and/or engage in community service to rebuild local
infrastructure (see Chega!, Part 9: Community Reconciliation).
349
See Hasegawa; Lao Hamutuk, The Special Panels for Serious Crimes Justice for East
Timor.
350
Sarmento, 50; Asia Pacific Centre for Military Law and Judicial System Monitoring Programme,
Appendix 3.
351
Rapoza.
352
Gusmao, Volunteerism Achieving Reconciliation and Peace, 81.
353
Marshall; as Cotton, and Nevins (at 212-213) note, Timor-Leste is almost totally dependent on
Indonesia for petrol and many other imports. Moreover, Indonesia would be in a position to restrict
the movement of people and goods to and from the western enclave of Oecusse, and could
possibly jeopardize further oil exploration in the Timor Sea by filing a dispute in the International
Law of the Sea Tribunal.

Jakarta to prosecute the deponents of the violence, it is likely that the
establishment of any of the judicial mechanisms described above in order to try
Indonesian citizens would be interpreted by the Indonesian government as an
undesirable change of course, placing Timor-Lestes future development at risk.
354

Further, it is extremely unlikely that the Indonesian government would be prepared
to hand over its nationals if they were the subject of judicial processes outside their
country, in the absence of overwhelming international pressure.
355
Even with
international tribunals, the prosecution of high-level military officials requires
significant cooperation and a measure of political will from nation states.
356

However, as discussed below, international tribunals are the best forums through
which diplomatic pressure may be applied in order to achieve such goals.

It is at this point that non-judicial mechanisms can go some way to resolving the
serious crimes issue, because Indonesian approval or support would not be
required for most of the non-adversarial processes listed. Moreover, Timor-Lestes
economic and security conditions would not be potentially compromised as they
might be if judicial processes were instituted. Whilst it is true that some of the non-
judicial options to be canvassed are as much punitive as they are restorative or
reconciliatory measures (eg demanding reparations from the Indonesian
government, forging a Community Reconciliation Agreement between perpetrator
and victim,
357
or taking diplomatic measures against fugitive perpetrators), these
options would not raise the ire of the Indonesian political and military establishment
to the same extent that judicial solutions to the question of serious crimes would.

On the other hand however, the use of judicial mechanisms to engage in further
prosecutions may be the only effective means to overcome the impunity enjoyed
by many of the planners, commanders and participants in the 1999 violence.
Although this point will be discussed in further detail from a theoretical perspective
in Chapter Five, the practical advantages of securing convictions of the remaining
perpetrators of the 1999 crimes include:

vindicating the suffering of East Timorese victims and their families,
358
and
fulfilling the social consensus amongst East Timorese for punitive justice of
some form to be carried out;
359

even-handed justice being meted out both to the primarily East Timorese
trigger-pullers but also the primarily Indonesian commanders and planners
of the violence;
360

an avoidance of community-based vengeance, particularly if further
suspects return from West Timor;
361

354
355
Juwana, 37.
356
Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, [4.3].
357
358
Cohen, ii; Harper, 150; see Chapter Three, Victims of the Violence and their Family Members.
359
Roper and Barria, 533; see also Commission of Experts Report, [381], for a statistical analysis of
the opinions of the East Timorese public.
360
Kent, 62; Powell, UN Verdict on East Timor, 1.
361
Hasegawa.

setting an example to the individuals alleged to have taken part in the civil
unrest witnessed in Timor-Leste during 2006, because as Dunn has pointed
out, the failure to adequately deal with the crimes committed during 1999
cannot be ruled out as an element in the present crisis [of April and May
2006];
362

to aid the democratisation process in Indonesia and to help end the TNIs
history of impunity for human rights violations;
363
and,
to preserve the integrity of the UN and its subsidiary agencies, given the
issue of UN Security Council Resolution 1272 and UN Human Rights
Commission Resolution 1999/S-4/1, which both call on the perpetrators of
the 1999 violence to be brought to justice.
364

If non-judicial mechanisms were adopted, depending on the particular mechanism,
it is likely that most of the above goals would remain unfulfilled. Overall, the
question of judicial versus non-judicial processes is a vexed one, likely to be
decided by practical considerations as much as matters of high principle.

Judicial and Quasi-Judicial Mechanisms Practical Institutional
Considerations

International Criminal Tribunal

To establish an international criminal tribunal for Timor-Leste, the same procedures
that were used to create the International Criminal Tribunals for Yugoslavia and
Rwanda would have to be followed. A resolution by the UN Security Council,
pursuant to Chapter VII of the UN Charter, would have to call for the establishment
of a tribunal.
365
This would require significant leadership and support from one of
the Permanent Members of the Council, and also the likely support of the UN
Secretary-General. The government of Timor-Leste would only be able to play a
tacit role in support of such a resolution (if at all), in view of the delicate
compromise that President Gusmao faces in dealing with his Indonesian
counterpart.
366

At the present time however, it would require a monumental change of course from
the Security Council to pass a resolution authorising the establishment of an
international criminal tribunal for Timor-Leste. Although there has been
widespread agreement within the current Council to support the UN Secretary-
Generals recommendation that the investigative mandate of the SCU be resumed

362
Dunn, interview by author; see also Amnesty International, Timor-Leste: All parties must act
resolutely to ensure justice for both current and past violations of human rights and East Timor
Action Network, ETAN Statement on Recent Events in Timor-Leste.
363
Experts, 7; see Nevins, 177, for more historical and current detail on human rights abuses carried
out by ABRI/TNI personnel.
364
Note also UN Security Council Resolution 1543, which reaffirms the need to fight against
impunity for serious crimes.
365
See UN Security Council Resolution 827 (1993); Report of the UN Secretary-General under
Security Council Resolution 808 (1993), [I]-[II]; UN Security Council Resolution 955 (1994).
366
Kent, interview by author.

in Timor-Leste,
367
the evidence suggests that the US, UK, France, Japan and
Germany, together with most other western nations, would like the option of an
internationally-sanctioned justice process for serious crimes in Timor-Leste taken
off the international agenda, given Indonesias strategic importance as an ally in
the war on terror.
368

Geopolitical issues aside, the primary practical concern that has been raised about
the establishment of an international criminal tribunal is the expense that this would
entail for potential donor nations.
369
As a tribunal would be established pursuant to
the UN Charter, the financing of the mechanism would derive directly from the UN
budget. Based upon previous models, an international criminal tribunal does not
dispense justice cheaply. By 2005, the annual budget of the ICTY was over
US$200 million, and moreover the ICTR has required US$60 million on average to
secure each of its guilty verdicts.
370
Further, convictions in an international tribunal
are unlikely to be achieved quickly. To first apprehend the desired suspects, and
then to successfully prosecute them is a process likely to take over a decade.
371

Moreover, despite the time and expense involved in carrying out trials through an
international tribunal, it is likely that prosecutors would only be able to focus on a
select range of defendants responsible at a command level for the serious crimes
of 1999 (i.e. senior Indonesian military, police and civil officers).
372
Lower-level
perpetrators who were not tried in the Special Panels would escape through the
net of any likely prosecution strategy.
373

If all the above obstacles could be overcome however, based on the success of the
ICTY and ICTR in securing the convictions of suspects that have come before
those bodies, it is likely that an international criminal tribunal for Timor-Leste (given
the same quality of evidence being available and the employment of similarly
qualified prosecutors) would be able to effectively try high-ranking Indonesian
military officers, amongst other suspects.
374
The great advantage of this
mechanism, along with the International Criminal Court, is that the international
nature of these tribunals (with their UN backing) means that it would be less likely
that the Indonesian government could maintain its refusal to hand over military
suspects for trial, given the international condemnation such recalcitrance would

367
Security Council Report.
368
Nevins, 163; Jolliffe, Compromising Justice in East Timor; Harris-Rimmer.
369
Roper and Barria, 527.
370
Ellwood, 2.
371
Roper and Barria, 533; as at 2004, the ICTY had convicted 37 defendants over 10 years of
operations, whilst the ICTR had only convicted 12 defendants over 9 years (Bowman, 388).
372
See Chapter One, Legal Responsibility for Crimes Against Humanity; Amnesty International
and Judicial System Monitoring Programme, [11.5]. The ICTY, ICTR, Extraordinary Chambers in
the Courts of Cambodia, and the Special Court for Sierra Leone have all adopted prosecution
strategies that aim to bring to justice those high-ranking perpetrators who bear the greatest
responsibility for the commission of international crimes (Commission of Experts Report, [61]).
373
Simpson.
374
Roper and Barria, 533; see Chapter One, Legal Responsibility for Crimes Against Humanity,
and see generally van Klinken and Bourchier, for an overview of the type of evidence that could be
presented before an international criminal tribunal.

generate.
375
These prospects would be further enhanced if the tribunal was based
in the Southeast-Asian region, or even better, in The Hague (as is the ICTY), so
that the court could be seen as an expression of the international legal community,
rather than merely that of Timor-Leste.
376

International Criminal Court

The International Criminal Court (ICC), seated at the Hague, is the long-awaited
permanent multilateral mechanism created to prosecute international crimes. It is
empowered to prosecute breaches of the Rome Statute, covering crimes against
humanity, war crimes and genocide.
377
It is important to note that the Court was
founded on the basis of complementarity, meaning that the ICC can only claim
jurisdiction in a particular case if the relevant domestic authorities are unwilling or
unable genuinely to carry out the investigation or prosecution of the crime.
378
In
ruling on local authorities unwillingness, it is relevant (amongst other matters) if the
proceedings:

were not or are not being 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 concerned to justice.
379

In the present case, SCU investigators were unable to gain access to suspects
residing in Indonesia, and moreover for the Jakarta ad hoc Court trials, the
Attorney-Generals office chose only to investigate and prosecute four of the 670
documented cases of human rights violations outlined in the KPP-HAM
investigation.
380
As noted in Chapter Two, those trials in the Jakarta ad hoc Court
that did go ahead have been widely criticised for their failure to conform to
international standards of prosecutorial independence and criminal procedure.
381
It
is likely therefore that the ICC would be able to assume jurisdiction over most of
the suspects implicated in the 1999 violence, based upon the inability of the
Special Panels to effectively prosecute those most responsible, and the
unwillingness of the Indonesian Attorney-General to bring the leading Indonesian
suspects to justice through the Jakarta ad hoc Court.

375
Dunn, interview by author. Graydon further notes that international measures such as
threatened trade sanctions or a failure to renew loans by the World Bank would be able to achieve
this outcome if Indonesia was not forthcoming in handing over suspects.
376
Dunn, interview by author; however, Laura A. Dickinson, The Promise of Hybrid Courts,
American Journal of International Law 97 (2003): 295, 302, notes that the establishment of an
international criminal tribunal at a location distant from the site of the crimes tends to alienate the
local population from its work.
377
Rome Statute, Article 5. The jurisdiction of the Court extends to cases where the relevant
conduct took place on the territory of a State Party to the Treaty, or where the accused is a citizen
of a State Party (Rome Statute, Article 12(2)). Timor-Leste acceded to the Rome Statute on the 6
th

of September 2002 and hence the violent attacks committed during 1999 would come under the
Courts spatial jurisdiction. However, see below on the question of temporal jurisdiction.
378
Ibid., Article 17(1).
379
Ibid., Article 17(2)(c).
380
See Chapter Two, Flaws in the Proceedings: Dili and Flaws in the Proceedings: Jakarta for
more detail.
381
See Chapter Two, Flaws in the Proceedings: Jakarta.

Further, in order to utilise the ICC to prosecute those accused of serious crimes in
1999, a significant obstacle in terms of temporal jurisdiction would have to be
overcome, as the ICC is only empowered to try cases that occurred after the Rome
Statute came into force, in 2002.
382
It would require the Security Council to pass a
resolution allowing the Court to exercise a one-off retrospective jurisdiction over
the 1999 crimes for them to be the subject of ICC trials.
383
If use of the ICC could
be secured however, the same key advantage noted above with regard to the
international criminal tribunal option would arise: the international nature of the
justice procedure would place significant pressure on Indonesia to hand over
indicted suspects. In relation to costs, use of the ICC is likely to be cheaper than
establishing an ad hoc criminal tribunal for Timor-Leste,
384
considering the
mechanism is already operating, hence no start-up costs would be incurred.

Therefore, if the question of jurisdiction can be overcome, the use of the ICC
compares favourably to the establishment of an international tribunal to try a small
number of similarly high-ranking perpetrators.
385
Whilst in the past, the use of a
high-profile international mechanism such as an international tribunal or the ICC
has been seen as a back-up option to deal with the perpetrators of serious crimes
in Timor-Leste,
386
the failures of other judicial mechanisms to bring the planners
and commanders of militia operations to justice means that these two options must
now be seriously considered as primary measures, despite the financial and
political pressures this would place on the Security Council and UN members.

Renewing the Investigative and/or Prosecutorial Mandates of the Serious Crimes
Unit and Special Panels for Serious Crimes

To enable the East Timorese judicial system to once again function to prosecute
the suspects of 1999 on a large scale,
387
the UN (through the UN Development

382
Rome Statute, Article 11(1); Asia Pacific Centre for Military Law and Judicial System Monitoring
Programme, Appendix 2, 19.
383
Commission of Experts Report, [447]-[452]. Although the ICCPR, Article 15, provides that
prosecutions under retrospective criminal laws are a contravention of human rights standards, an
exception for an act or omission which, at the time when it was committed, was criminal according
to the general principles of law recognized by the community of nations exists (emphasis added).
Arguably, the Rome Statute crimes of genocide, war crimes and crimes against humanity constitute
general principles of law recognized by the community of nations due to their likely status as norms
of jus cogens (see Chapter One, note 84).
384
385
The Commission of Experts Report (at [442]-[445]) has also canvassed a composite model,
whereby an International Criminal Tribunal for Timor-Leste would be created, operating out of the
ICC by means of a special agreement between the ICC and the UN Security Council. Such a
model would reduce start-up costs but would also retain the political significance of an ad hoc
criminal tribunal.
386
For example, see Commission of Experts Report, [525]; Chega!, Part 11, [7.2].
387
However, as noted in Chapter Two, serious crimes suspects who return to Timor-Leste still
theoretically face the threat of arrest and of prosecution within the Dili District Court, and there are a
number of former militia members currently in pre-trial detention. The first trial of a militia leader
from 1999 (Manuel Maia) since the closure of the Special Panels in May 2005, took place in mid-
2006 (Report of the Secretary-General on justice and reconciliation for Timor-Leste, [10]; Judicial
System Monitoring Programme, Overview of the Timor Leste Justice Sector 2005, 31).

Programme) together with international donors would have to contribute a
significant measure of resources and personnel in order to re-activate the SCU and
Special Panels.
388
Ideally, a reconstituted serious crimes process would be seen
as subject to UN ownership, so that any indictments issued following renewed
criminal investigations would be seen as the result of UN efforts, rather than the
work of the General Prosecutor of Timor-Leste alone. Such a move would place
greater political pressure on Indonesia to extradite those suspects named in SCU
indictments,
389
and would ensure the independence of the justice process from
East Timorese government interference.

The most feasible means of reactivating the Serious Crimes Process would be
through the mandate of UNMIT, the successor mission to UNOTIL that was
established in August 2006.
390
However, at the current stage, plans to deal with
serious crimes through the UNMIT framework only extend so far as to re-establish
the investigative function of the SCU.
391
Whilst re-commencing investigations into
more than 830 as-yet unaccounted for murders, together with crimes other than
murder (such as sexual offences and torture) would undoubtedly constitute a
worthwhile development,
392
it is an unfortunate reality that the judicial system of
Timor-Leste faces enormous challenges in bringing perpetrators to justice for
crimes being committed now, let alone prosecuting crimes committed in 1999.
393

Without a comprehensive international assistance package enabling the SCU to
resume its full prosecutorial capacity, any new investigations launched may have
little effect in bringing suspects to trial and obtaining convictions.
394
It should also
be noted that even if a full prosecutorial system were to be eventually re-
established, in all likelihood, a continued lack of Indonesian (and possibly also East
Timorese)
395
government cooperation with the process would mean only East

388
Commission of Experts Report, [460]. Assistance in terms of international personnel would have
to encompass judges, investigators, prosecutors, defence lawyers, translators and administrative
support (Hirst and Varney, 27-28; Amnesty International and Judicial System Monitoring
Programme, [12]; Dickinson, 307; Judicial System Monitoring Programme, JSMP Submission to the
Independent Special Commission of Inquiry for Timor Leste, [4.2]-[4.3]).
389
Jrvinen, 71; Timor-Leste has no current extradition agreement with Indonesia and such a treaty
would need to be created in order to facilitate access to all perpetrators (Girginov, [2]).
390
See Chapter Three, note 345.
391
Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36].
392
Hirst and Varney, 29; Amnesty International and Judicial System Monitoring Programme, [4].
393
Gusmao, Considering a Policy of National Reconciliation, 119; Judicial System Monitoring
Programme, JSMP Submission to the Independent Special Commission of Inquiry for Timor Leste,
[1.2]; Harris-Rimmer. For example, during the entire month of August 2006, there were no trial
hearings scheduled for either criminal or civil cases in Timor-Lestes District Courts, due to the
departure of international judges whose contracts had expired (Judicial System Monitoring
Programme, Departure of International Judges and Prosecutors Causes Problems in Timor-Leste
Judicial System).
394
Jolliffe, Human Rights Abuses and Impunity in East Timor.
395
In September 2006, Judicial System Monitoring Programme continued to report some signs
indicating that the Office of the Prosecutor-General is susceptible to pressure from the executive
[government] regarding the decision of whether to commence prosecutions against certain high
profile suspects (Judicial System Monitoring Programme, JSMP Submission to the Independent
Special Commission of Inquiry for Timor Leste, [4.1]). Also see Chapter Two Flaws in the
Proceedings: Dili on the East Timorese governments handling of the Wiranto et al indictment in
2003.

Timorese-based suspects (rather than higher-level perpetrators based in
Indonesia) could be detained and brought to trial.

Rule 61 Procedures

A Rule 61 Procedure is a means of passing judgement on a case where the
accused is absent from proceedings. The name of the procedure derives from
Rule 61 of the ICTY Rules of Procedure and Evidence, under which the Court can
hold a hearing to re-examine an indictment in cases where the accused cannot be
found or was not surrendered to the Court. After reviewing the evidence available
(including new testimony from witnesses, if appropriate
396
) the Court is able to
determine whether there are reasonable grounds to find that the accused
committed the crime/s. The Court can then issue a published certification that the
reason for the failure to convict the accused is due to the non-cooperation of a
State.
397

An adaptation of the Rule 61 Procedure carried out in Timor-Leste would enable a
court to issue a judgement as to whether or not there are reasonable grounds to
suspect accused that perpetrators based in Indonesia committed the serious
crimes which are the subject of their indictments. The judgement could then
declare that but for Indonesias lack of cooperation, it is likely that the accused
would have been convicted.
398
For victims of the crimes and their families, this
procedure would provide an opportunity to openly testify against the deponents of
violence, an action which has the potential to help restore their dignity and self-
respect.
399
Moreover, a finding of reasonable grounds would also give more
impetus to international efforts to enforce Interpol arrest warrants and invoke
universal jurisdiction against the accused.
400

However, a number of genuine weaknesses are evident with this model. First, for
all the findings of reasonable grounds that may be made, this will probably not
result in any real punishment of the perpetrators living in West Timor and
elsewhere in Indonesia. As noted above, it is extremely unlikely that Indonesia
would hand over its indictees to face trial in the absence of overwhelming
international pressure: a domestic-law based mechanism, employed in a domestic
court would be unlikely to change Indonesias position. Second, Timor-Lestes
courts do not currently have the resources, nor the legal mandate, to make use of
the Rule 61 option,
401
meaning that the use of the procedure would have to
emanate from a renewed Serious Crimes Process, requiring significant support
from donor nations. Even if the use of the Procedure were currently possible,
prosecutors and judges might not wish to waste their time and resources

396
ICTY Rules of Procedure and Evidence, Rule 61: Procedure in Case of Failure to Execute a
Warrant, (B).
397
Ibid., (C), (E).
398
For detailed explanation of a proposed Rule 61 Procedure as adapted for use by the General
Prosecutor of Timor-Leste, see Asia Pacific Centre for Military Law and Judicial System Monitoring
Programme, Appendix 3.
399
Harper, 162.
400
Asia Pacific Centre for Military Law and Judicial System Monitoring Programme, [4.2.1].
401
Ibid.

undertaking such hearings, when there exist incomplete investigations and cases
that could lead to real convictions.
402

Trials in Timor-Leste Conducted in Absentia

A trial in absentia is a trial in which a verdict (including a possible conviction) is
issued in relation to the accused, despite the indictee not being within the States
custody.
403
Currently, there exist no provisions in East Timorese criminal law to
conduct trials of fugitive perpetrators in absentia.
404
However, if the relevant
procedural changes were made, the logical application of this type of procedure
would be to trials in Timor-Leste of those perpetrators at large in Indonesia.

The advantages and disadvantages of this option mirror those of Rule 61
Procedures described above. Overall, as trials in absentia are unlikely to make
any real difference to the current impunity enjoyed by many suspects, and they are
even more likely to raise the ire of the Indonesian government, i t would be unwise
to invest valuable time and money in the legal reforms and extra resources that
would be required to support this option in Timor-Leste.

Judicial Reform and Subsequent Retrials in Indonesia

The CAVR,
405
UN Commission of Experts,
406
UN Secretary-General,
407
and even
some NGOs
408
have all recommended that Indonesia be given a second chance to
try its nationals, after the acquittal of all bar one of the Indonesian suspects by the
Jakarta ad hoc Court and subsequent appeals. However, in Chapter Two, I argued
that the results of the Jakarta trials and their appeals did not merely arise due to
the particular political and legal circumstances surrounding those prosecutions, but
rather reflected a number of the deficiencies of the Indonesian legal system as a
whole. Accordingly, for the Indonesian Attorney-Generals office to review the ad
hoc Court prosecutions and their appeals and to successfully carry out de novo
trials
409
of the acquitted,
410
in addition to further trials of suspects not originally
indicted, this would be first contingent upon more general reforms to the

402
Ibid.
403
Schwartz, 12.
404
Rapoza; Asia Pacific Centre for Military Law and Judicial System Monitoring Programme,
Appendix 3, 21.
405
Chega!, Part 11, [7.1.5].
406
407
408
For example, see Bang-Jensen et al; Amnesty International, Timor-Leste: Security Council
inaction on justice for Timor-Leste leaves fight against impunity in limbo.
409
See Chapter Three, note 278 (above).
410
Although the principle of ne bis in idem (double jeopardy) is enshrined within the Indonesian
Constitution (providing that the only exception to the rule arises where evidence is discovered that
was not previously available during trial), it is arguable that international law provides an additional
exception to the doctrine where the initial trial was fundamentally flawed (Commission of Experts
Report, [395]). The UN Commission of Experts reached the conclusion that the Jakarta ad hoc
Court trials were of such a character (at [394]).

Indonesian justice system.
411
Such reforms would be substantial in their scope
and impact, and would probably have to include strengthening the independence of
judges and prosecutors, putting in place effective measures for witness protection,
(re)educating judges and prosecutors in international criminal law jurisprudence,
and amending the Law on Human Rights Courts (No 26/2000) so that it complies
with international standards of criminal procedure.
412

Even if all the reforms listed above were eventually to be carried out, there would
be no guarantees that any further trials would be totally free of outside influence.
Despite the official abolition of the dwifungsi doctrine,
413
the military remains a key
player in Indonesian politics, and individual TNI members possess much political
clout, in addition to substantial financial resources.
414
Although the previous
deficiencies in the Indonesian judicial system are slowly being eradicated,
415

overall, the nature of the reforms that would still have to be made, together with the
continued veneration of the Indonesian military in political circles, means it is
unlikely that further trials in Indonesia would be successful in convicting TNI
personnel at the present time.
416

Universal Jurisdiction
417

The prosecution of militia, military, police, or civil suspects by universal jurisdiction
in the courts of third-party nations would offer all the benefits associated with
judicial processes in general,
418
whilst also removing the burden of seeking justice
from the fragile shoulders of the East Timorese government. However, the great
difficulty with this institutional method is that the accused must first situate
themselves within the jurisdiction of the prosecuting state in order for an arrest
warrant to be enforced.
419
Although this circumstance may only arise infrequently,
prosecutions could be encouraged wherever relevant national laws allow it, such
that third party states adopt a principled stand towards the problem of justice for

411
Amnesty International and Judicial System Monitoring Programme, [11.1]; Commission of
Experts Report, [390].
412
Amnesty International and Judicial System Monitoring Programme, [12]; Dickinson, 305;
413
Dwifungsi was the doctrine espousing the dual civilian-security function of the Indonesian
military, during the leadership of President Suharto (Rabasa and Haseman, 10). As official
government policy, this dual-function has been gradually phased out since the end of the New
Order regime in 1998 (Tan, 92).
414
Jolliffe, Compromising Justice in East Timor.
415
Lindsey; Amnesty International and Judicial System Monitoring Programme, [10.1].
416
Lindsey; notably, two further sets of human rights trials that began after the conclusion of the
Jakarta ad hoc Court trials (investigations into 1) extrajudicial executions in the Tanjung Priok area
north of Jakarta in 1984, and 2) extrajudicial executions, torture and arbitrary detention in Abepura,
Irian Jaya, during 2000) have exhibited some of the deficiencies witnessed in the Jakarta trials,
namely, a failure to indict those most responsible, the intimidation of prosecution witnesses, and a
lack of prosecutorial will to secure convictions of the accused (Amnesty International and Judicial
System Monitoring Programme, [10.1]).
417
For further explanation of trials by universal jurisdiction, see Chapter Three, note 263.
418
See notes 358-364 (above).
419
See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v
Belgium) (Judgment), at 75-79.

serious crimes in Timor-Leste, over Realpolitik considerations such as their
economic and security relationship with the Indonesian government.

In addition to the use of universal jurisdiction in bringing the perpetrators to criminal
justice, a number of nations have domestic laws that could facilitate civil suits
against those perpetrators who remain at large. Under the United States Alien
Tort Claims Act, successful lawsuits were filed in 1994 against General Sintong
Panjaitan, for his role in the Dili massacre of 12 November 1991, and in 2000,
against General Johnny Lumintang, for his role in the 1999 militia violence.
420
As
with the universal jurisdiction criminal trials described above, the difficulty with
initiating such actions is that the defendant would normally have to be within the
relevant nations territory, so that he or she could be served with court
documents.
421
Where the defendant/s remain outside the State hosting the
criminal or civil action, a judgement against those implicated in the 1999 violence
would at best enable diplomatic measures to be taken in order to encumber the
suspect/s found liable.
422
However, where the judgement is able to be enforced,
this institutional option becomes an ideal means to share responsibility for fighting
the impunity currently enjoyed by high-ranking serious crimes perpetrators.

Non-Judicial Mechanisms Practical Institutional Considerations

Amnesties authorised by the Commission of Truth and Friendship, together with
Presidential Pardons

The combination of amnesties issued by the CTF Commissioners after the
compilation of their Final Report, together with Presidential Pardons issued by
Xanana Gusmao, could lead to the exoneration of some (or all) of the following
deponents:

1. East Timorese militia members convicted by the Special Panels;
2. East Timorese militia members still at large in Indonesia or else whose
criminal actions were not the subject of SCU investigation; and
3. Indonesian military, police and civil suspects living in Indonesia.

Proceeding with amnesties and pardons would have a number of advantages,
apart from the CTFs obvious asset that it constitutes a mechanism already

420
The Alien Tort Claims Act (1789) allows US courts to adjudicate on human rights-related cases
where neither of the parties is connected to the United States. Under the Act, Lumintang (at the
time, the Indonesian Armys Vice Chief of Staff) was found liable for US$66 million, on the basis of
command responsibility, whilst a judgment for US$14 million was issued against Panjaitan (East
Timor Action Network, Indonesias Generals on Trial in US Courts, Available:
http://www.etan.org/news/2000a/11suit.htm#Legal%20Background (8 August 2006)). The US
Torture Victim Protection Act (1992) possesses a similar application, enabling foreigners to launch
civil suits in domestic courts against individuals who engage in torture or extrajudicial killing, whilst
acting in an official capacity for another nation. Local remedies must have been exhausted before a
claim is made.
421
See for example Filartiga v Pena-Irala, United States Court of Appeals, Second Circuit, 30 June
1980, 630 F.2d 876, with application to the Alien Tort Claims Act.
422
See Diplomatic Measures by Third States (below).

established and promoted by the governments of both Timor-Leste and Indonesia.
First, amnesties and/or pardons for East Timorese perpetrators would facilitate the
return of those militia members remaining in West Timor and elsewhere in
Indonesia, and would also free those convicted by the Special Panels from prison,
thereby lifting the possible burden of further trials or the maintenance of prisoners
from the state.
423
From an economic perspective, President Gusmao feels this
could be an especially important move, seeing as many of East Timors able-
bodied young men have either fled to West Timor, or else have been imprisoned
as a result of the Serious Crimes Process.
424

Second, the institutional recommendations to be proposed by the CTF in
conjunction with its amnesty-granting mandate
425
have the potential to assist with
reforms to the TNI and Indonesian judicial system, in the broader context of
democratisation in Indonesia. Criminal trials of course have the potential to
highlight the individual responsibility of the accused, but neglect institutional
responsibilities.
426
Third, offering amnesties for Indonesian military, police and civil
officials is likely to be the most beneficial choice for East Timorese-Indonesian
relations amongst all potential institutional options available. Fourth, with the
current unlikelihood of senior Indonesian military figures facing trial over their role
in the 1999 violence in any case (some of those figures named in the KPP-HAM
Report and those indicted by the SCU have even been promoted
427
), a
circumstance of extreme selectivity has arisen with regard to punishment. The
economic argument noted above seems more attractive considering it is only
lower-ranking perpetrators who have been convicted by the Special Panels, and for
this reason, the option of granting pardons to these lesser-profile perpetrators
appears preferable to maintaining the status-quo. As President Gusmao has
stated:

When [victims] learn that, in prison, the state has to feed the prisoners three
times a day and take care of their health, that the prisoners have time
allotted for sports and to study, that they have clean water, electricity,
mattresses, blankets and clothes and that, for this reason, the State has to
cut spending for schools, for medications, for roads, and so forth, the
population immediately reacts by saying: Oh! No! This is unfair!Some
people will [still] have to serve their sentences, but we should not let them
rot in prison.
428

In response to proposed amnesties and/or pardons, apart from the general
criticisms by human rights advocates that amnesties and pardons granted for
Rome Statute crimes violate international law
429
(which will be considered further in
the next Chapter), opponents of the CTF model have expressed a number of

423
Gusmao, Considering a Policy of National Reconciliation, 114; Harper, 183; Laakso, 52.
424
Harris-Rimmer.
425
See Gusmao, Letter dated 22 June 2005 from the President of Timor-Leste to the Secretary-
General, 5.
426
Ibid., 5-6; Simunovic, 703.
427
Powell, Timors Full Horror Revealed, 25; Dunn, interview by author.
428
Gusmao, Considering a Policy of National Reconciliation, 122-123.
429
See for example Commission of Experts Report, [338]; Hirst and Varney, 29.

reservations about this approach in particular. Critics argue that the CTF focuses
on the rights of perpetrators, at the expense of the rights of victims.
430
There are of
course no guarantees that the testimony given by perpetrators to the Commission
will be truthful, and there are no provisions allowing for the cross-examination of
witnesses.
431
Additionally, concern has been expressed that the CTF possesses
access to the archives of the CAVR and Special Panels for Serious Crimes,
432

including potentially sensitive information regarding victims and witnesses which
might threaten their future safety in Timor-Leste and/or Indonesia.
433
Finally, I
noted in Chapter Three that many former victims and their families would not
oppose the eventual granting of pardons to those East Timorese militia members
convicted and imprisoned by the Special Panels, so long as the Indonesian
planners and commanders of the violence could be apprehended and brought to
trial.
434
Accordingly, criticism has been voiced that the amnesty regime proposed
by the CTF, in light of the fact that the major beneficiaries of amnesties are likely to
be Indonesian military officers, does not possess democratic legitimacy because its
establishment has bypassed parliamentary and popular consultation.
435

Removing the CTFs Amnesty-Granting Power

Removal of the amnesty-granting power possessed by the CTF will shift the
primary focus onto the Commissions truth-seeking mandate.
436
Although
removing this amnesty-granting capability has been recommended by the UN
Secretary-General as a measure designed to lead to further prosecutions,
437
any
fresh evidence that comes to light as a result of CTF hearings may arguably prove
inconsequential from a criminal trials perspective. Linking the Commissions
hearings and final report with possible judicial processes in Indonesia and Timor-
Leste would do little to alleviate the problems previously experienced with trial
proceedings identified earlier. Specifically, prosecutors in Dili would still not have
access to Indonesian-based suspects,
438
and additionally there has arguably been
no political will within the Indonesian Attorney-Generals Office to see leading
perpetrators effectively punished for their actions.
439

Moreover, without the incentive of amnesty, leading Indonesian perpetrators may
choose not to testify before the Commission at all, due to fear of self-incrimination.
Without reliable testimony from leading suspects, the Commissions final report
would be primarily based upon an examination of documents already publicly

430
431
432
CTF Terms of Reference, [19(b)].
433
434
See Chapter Three, Victims of the Violence and their Family Members.
435
Commission of Experts Report, [348], [351]; Lao Hamutuk, Editorial: Commission of Truth and
Friendship Brings Neither. However, on the other hand, it may be argued that the CTF was
established by an executive government that was democratically elected in 2002: as Stahn (at 956)
notes, it is generally agreed that truth commissions should be established by the legislature or
executive of a democratically elected government (emphasis added).
436
437
Report of the Secretary-General on justice and reconciliation for Timor-Leste, [39(b)].
438
See generally Chapter Two, Flaws in the Proceedings: Dili.
439
See generally Chapter Two, Flaws in the Proceedings: Jakarta.

available: the KPP-HAM Report, indictments and court transcripts from ad hoc
Court and the Special Panels, and Chega!: the CAVRs Final Report.
440
Arguably,
the Commissions contribution to the historical record of the crimes committed
during 1999 would then become negligible.
441
The CTF should be seen as a
restorative justice mechanism rather than a means to further prosecutions: if
further trials became the intention of the East Timorese and Indonesian
governments, the Commission would serve very little use.

Reparations Programmes for Victims and their Families

As recognised in Chapter Three, many victims of the 1999 violence and their
families feel that their ordeal has compromised their chance of entering life in
independent Timor-Leste on an equal footing with their fellow citizens. The
provision of monetary and other reparations would be an effective means of
compensating and acknowledging victims and their families for their losses,
442
and
in this sense might in fact supersede criminal trials in terms of providing a real
solution for members of the general public.
443
As Harper notes:

With no operational welfare state or insurance culture [in Timor-Leste], a
court judgement and a jail sentence simply do not respond to the primary
issues faced by victims.
444

Although there appears little doubt that the provision of reparations would be a
positive step in dealing with the legacy of the violence (not to mention, arguably a
legal requirement
445
), the important question to be answered in this case is who is
to provide the funds? If the CAVRs recommendations were to be heeded and
such reparations were to be payable by Indonesia, together with permanent
members of the UN Security Council,
446
the reparations would necessarily possess
a different function to the significant amounts of aid that have already been

440
CTF Terms of Reference, [14(a)(i)]; see also Report of the Secretary-General on justice and
reconciliation for Timor-Leste, [24].
441
However, the UN Secretary-General has argued that incomplete criminal investigations have
meant that a full and accurate factual record of the serious crimes committed in 1999 has not yet
been established (Report of the Secretary-General on justice and reconciliation for Timor-Leste,
[36]).
442
According to the CAVR, reparations may be defined as measures to repair damages suffered by
victims of human rights abuses. Relevant forms of reparations that may be issued include
compensation, restitution (re-establishment, as far as possible, or the situation that existed for the
beneficiary prior to the violation), rehabilitation (including the provision of medical and
psychological care and the fulfillment of significant personal and community needs) and symbolic
forms of reparation (Chega!, Part 11, [12.2]).
443
Lopes.
444
Harper, 176. It has even been argued that if the CAVRs recommendations for reparations had
immediately been met, the poverty and unemployment problems speculated as the roots of the
crisis of May and June 2006 might have partially been alleviated (East Timor Action Network,
ETAN Statement on Recent Events in Timor-Leste).
445
The Factory at Chorzow case, at 29; Draft Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian
Law; Commission of Experts Report, UN Commission on Human Rights resolution 2003/34, UN
Doc E/CN.4/2000/62, Annex (23 April 2003), [495].
446
Chega!, Part 11, [1.6]-[1.7], [10.16].

invested by western nations in Timor-Lestes reconstruction. As opposed to aid,
reparations would go straight to the victims.
447
However, as President Gusmao
acknowledges, demanding reparations for international wrongs from nations who
have generously supported East Timors post-occupation reconstruction to the tune
of more than US$2 billion since 1999
448
would be an act of extreme ingratitude,
449

not to mention the likely negative impact on Timor-Indonesia relations.

One means of providing reparations for victims of the violence, without unduly
compromising Timor-Lestes position internationally would be to make use of the
International Criminal Courts Trust Fund for Victims. The contents of the fund are
sourced from voluntary contributions by states, international organisations,
corporations and individuals, together with fines and forfeitures ordered by the
Court,
450
and were intended to compensate victims of crimes within the jurisdiction
of the Court, and [their] families.
451
One issue that would need to be resolved is
whether or not a positive judgement by the ICC is required for victims to gain
access to the fund, or whether claims may be made by any victims of crimes over
which the Courts mandate extends (i.e. genocide, crimes against humanity and
war crimes).
452
It has been suggested that although many of the indictments
issued by the SCU have not resulted in trials and convictions, they are nonetheless
of a sufficiently high quality to be used by named East Timorese victims in making
a case to access resources of the Fund.
453
Although this form of compensation
might not have the same symbolic value as reparations paid directly by Indonesia
or a western nation,
454
it would nonetheless provide the same on-the-ground
benefits for victims.

As with any transitional justice measure that purports to provide benefits to victims
and their families in Timor-Leste, problems of selectivity may arise with the use of
the ICC Fund, due to the fact that the SCU indictments only dealt with 1999
crimes,
455
and as noted by the CAVR, atrocities had been committed throughout
the length of the Indonesian occupation.
456
The last thing that a compensation
process would set out to achieve would be to create further divisions within East

447
Harris-Rimmer.
448
Neves.
449
Xanana Gusmao, Press conference by President of Timor-Leste, Available:
http://www.unmiset.org (8 August 2006).
450
International Criminal Court Resolution ICC-ASP/1/Res.6 (9 September 2002), [2].
451
Rome Statute, Article 79(1).
452
The Redress Trust, 36; if this preliminary jurisdictional issue cannot be overcome however,
Judicial System Monitoring Programme (Submission to the United Nations Commission of Experts,
10) has suggested that a specially-created ad hoc fund could finance a comprehensive reparations
program, citing the previous examples of models created for El Salvador, Guatemala, Haiti, Malawi,
South Africa and Peru. An ad hoc model could be funded through international resources, taxes,
private sources, the sale of assets, or the recovery of assets from perpetrators and would be
appropriate for situations where there exists a large and ill-defined class of victims, and a weak
national economy, such as in Timor-Leste.
453
Harris-Rimmer.
454
Graydon.
455
456
See generally Chega!, Part 7: Human Rights Violations.

Timorese society, given the unrest witnessed thus far during 2006.
457
Although in
the compilation of Chega! the CAVR identified and provided emergency
reparations to 500 most eligible victims from the entire period of the Indonesian
occupation,
458
selectivity nonetheless remains a significant problem associated
with proposed reparations measures for Timor-Lestes victims. As President
Gusmao has noted:

We look at each other and feel that we deserve more because we did
more [for the resistance]. We insult our people, we insult our history
because our history did not begin on 20 May 2002.
459

Accordingly, it is important that planning for any reparations measures takes into
account ways in which the funds, be they from governments, the ICC Trust Fund
for Victims, or an ad hoc Fund, may be used to enhance an entire communitys
standard of living, rather than focussing exclusively on the individual needs of
those worst affected by the 1999 violence (although these people still obviously
constitute the most important group of beneficiaries).
460

Apologies and Confessions

As noted in Chapter Three, both victim groups and the CAVR have called for
apologies from individual perpetrators and the governments of western states who
supported the Indonesian occupation of Timor-Leste. So far as such confessions
and genuine apologies assist victims and their families in overcoming their grief
caused by the violence of 1999 and also help to foster relationships based upon
reconciliation and transparency both at a community and inter-governmental level,
these are extremely worthwhile measures, especially considering they require the
expenditure of almost no financial or human resources and can be carried out
across national borders.

Renewal of the Community Reconciliation Process (CRP) to Deal with Serious
Crimes

457
Graydon.
458
Commission of Experts Report, [495]; Harris-Rimmer. Kent, interview by author, noted that the
CAVRs 500 most eligible victims were chosen from amongst those who came forward to give
evidence to Commission hearings, rather than through the conduct of any thorough analysis.
Solely relying on the CAVRs identification of the most eligible victims is likely to contribute to
divisions within society over the recipients of reparations.
459
460
Commission of Experts Report, [498]. The Commission of Experts Report (at [499]-[501]) lists
the strengthening of social services as one of two key targets of community-focussed reparations:
schools, universities, hospitals, hospices and dispensaries could be constructed with the funds.
Second, reparations should fund the recovery, identification and burial of unidentified human
remains. The Report of the Secretary-General on justice and reconciliation for Timor-Leste (at
[39(d)(ii)(a)]) lists collective restorative measures as possibly including such remedies as the
provision of qualified teachers, school equipment, human rights educational material and
awareness programmes, health, social and psychological services, and of support to local human
rights organizations and victims rights advocacy services.

This option has the prime advantage of being a method whereby a non-judicial
institutional solution may be applied to those serious crimes cases that have not
been the subject of prosecution in the Special Panels for Serious Crimes, thereby
potentially relieving the East Timorese judicial system of further burdens. Given
the relative success of the old CRP in facilitating reconciliation between the
perpetrators of less-serious crimes and their victims,
461
this would appear an option
worthy of further consideration. The process could be set up so that perpetrators,
in order to be indemnified from prosecution, must offer a formal apology, pay some
measure of compensation, and engage in community service to assist the family
and/or the community they have harmed, all as part of the Community
Reconciliation Agreement reached with victims and community representatives.
462

This solution would provide some restitutionary remedies for victims, bring some
measure of sanction to perpetrators, and might also incorporate traditional
Timorese modes of conflict resolution,
463
adding to the legitimacy of the process in
the eyes of the public.

However, there are two major potential problems with this model. First, a prime
consideration is whether or not such a process would work as effectively with the
perpetrators of serious crimes such as murder and rape as it did in most cases with
the deponents of lesser crimes such as arson and cattle theft. Although the
precise details of any plan for a renewed CRP have never been finalised,
464
the
authors of any such proposal would of course have to find a way to ensure that no
revenge killings or other attempts at vigilante-style punishment were carried out on
the perpetrators involved. Moreover, for the protection of rape and other sexual
crime victims, the perpetrator should not be allowed to deal directly with their
victims unless prior consent was given.

Second, the most glaring weakness of this option (along with other purely-domestic
institutional models) is that a renewed CRP would only have access to those
fugitive perpetrators still living in Timor-Leste. As noted in Chapter Two, the vast
majority of those indicted and not yet prosecuted by the SCU are thought to be
residing in Indonesia.
465
To combat this problem, it is likely that moves towards a
renewed CRP would have to be accompanied by a programme of amnesties to
facilitate the repatriation of former militia members. Of course, many of the
perpetrators would choose never to return to Timor-Leste, and moreover other
indicted suspects (mainly those alleged to have played command or planning
roles) were never based in Timor-Leste in the first place. Therefore, such a
measure might only succeed in achieving accountability for a very limited number
of accused persons, and therefore does not compare favourably with other
institutional models that may affect wider change.

461
Zifcak, 54; Chega!, Part 9, 46-47.
462
Stahn, 963-964.
463
For example, kalu sala, a form of traditional East Timorese mediation which is used to establish
the identity of the victim and then to ascertain an appropriate form of compensation, is drawn upon
by the Community Reconciliation Process (Chega!, Part 11, [12.5]).
464
Hasegawa.
465

Diplomatic Measures by Third States

Even if a majority of cases investigated by the SCU have not led to trials due to
geopolitical reasons, the high-quality indictments (and Interpol Red Notices)
produced in many cases may have significant value with regard to diplomatic
measures able to be taken against the named suspects.
466
Those Indonesian-
based suspects, whilst they may avoid prosecution domestically, still face the
threat of trial in third states on the basis of universal jurisdiction, or transferral to
face trial in Timor-Leste.
467
For those nations willing to play a small part in
combating impunity, a number of diplomatic measures may be taken, backed by
these threats. Foreign assets might be seized and travel and foreign investment
prevented in an effort to significantly encumber the lives of suspects.
468

Additionally, extradition treaties might be signed with Timor-Leste and nations
whose laws allow them to conduct trials by universal jurisdiction. As with universal
jurisdiction trials in third-party states, the use of diplomatic measures frees the
government of Timor-Leste from the burden of pursuing accused persons, and
shares the responsibility to combat impunity amongst willing nations.

Conclusion

At the beginning of this chapter, a range of persuasive practical justifications were
advanced for the use of judicial methods to try the perpetrators, but on the other
hand, the potential adverse effect of these processes on East Timorese-Indonesian
relations was noted. It is especially significant that an international-based judicial
process would reflect the broad will of the international legal community, meaning
an increased likelihood of Indonesian cooperation, and moreover such a process
would not leave Timor-Leste in an isolated position against its powerful neighbour.

Accordingly, from a balanced perspective of practical advantages and
disadvantages, the most preferable judicial options are:

use of the International Criminal Court to prosecute the Indonesi an-based
commanders and planners of the militia violence,
469
or alternatively the use
of universal jurisdiction by third-states to try those same high-ranking
perpetrators, where and when this becomes possible, and;

within the newly-established UNMIT framework, reactivating the Serious
Crimes Process in order to complete investigations and prosecutions of
outstanding crimes against humanity, murder, sexual offences, and torture
cases. Admittedly, it is extremely unlikely that a renewed Serious Crimes
Process could gain access to Indonesian-based perpetrators, hence the
need to focus investigative efforts on readily-prosecutable crimes.

466
Graydon.
467
See Universal Jurisdiction (above).
468
Harris-Rimmer.
469
This would require a Security Council resolution authorizing the ICC to exercise a one-off
jurisdiction over the events of 1999: see note 383 (above).

On the other hand, the most effective means of responding to this situation from a
non-adversarial perspective are as follows:

presidential pardons for (some of) those perpetrators imprisoned by the
Special Panels and the consideration of an amnesty regime for those East
Timorese perpetrators who have not yet returned to Timor-Leste, together
with those Indonesian military, police and civil officials implicated in the
violence. This option can be justified through an economic perspective (for
the East Timorese perpetrators) and through an international relations, or
geopolitical perspective (for the Indonesian perpetrators).

Although the Commission of Truth and Friendship is able to recommend
amnesties for deponents (along with corrective institutional measures), the
CTF may be the wrong forum through which to proceed, given its lack of a
democratic mandate and of popular support in Timor-Leste, together with
the Commissioners broad power to access sensitive personal records. The
previously-proposed East Timorese national amnesty law that was
effectively superseded by the CTF
470
would be a more appropriate option.

Reparations being issued to eligible victims and their communities. The ICC
Trust Fund for Victims would be an ideal source of funding, if it can be
successfully argued that all victims of Rome Statute crimes are eligible to
access the Fund. Alternatively, an ad hoc Fund could be established for the
same purposes.

Confessions and apologies issued by the perpetrators of serious crimes,
and apologies being made by those western nations which supported the
Indonesian occupation of Timor-Leste.

Based upon SCU indictments and Interpol Red Notices, UN member states
encumbering the lives of suspects living outside Timor-Leste using
diplomatic measures.

Although some of the measures described above are financially self-supporting
and moreover do not directly affect Timor-Lestes international relations (for
example, the use of universal jurisdiction or diplomatic measures by third states,
and the granting of apologies by perpetrators), overall, the two sets of
recommendations cannot completely coexist. In particular, the question of trials
versus amnesties and pardons is a divisive one, and will need to be analysed from
a theoretical perspective in the next chapter in order to be resolved in its
application to the present case.

470
See Chapter Three, President Xanana Gusmao and the Executive Government of Timor-Leste.

Chapter Five

Legal and Theoretical Framework for Considering
Amnesties and Pardons versus Criminal Trials

Introduction

In the conclusion to Chapter Four, I identified two sets of strategies that could be
pursued in response to the question of justice in Timor-Leste: one group
comprising judicial and quasi-judicial solutions, and the second group listing non-
judicial approaches. Of these options, the most contentious choice involves that
between amnesties and/or pardons on one hand, and criminal prosecutions of
perpetrators at large in Indonesia and Timor-Leste on the other. In order to resolve
this otherwise apparently irreconcilable conflict between restorative and
retributive responses to mass atrocity, this chapter considers transitional justice
theories on criminal trials versus amnesties and pardons,
471
together with an
international law framework, with a view to finalising a set of strategies that would
effectively address the question of justice in Timor-Leste if implemented. Although
predicting the impact of a states choice of transitional justice measures on nation-
building and the promotion of democracy in the future is far from an exact science
(as democracy and strong state institutions can take hold regardless of past events
and policies
472
), the theoretical trends evident from these transitional justice
models may be the best way of resolving what is otherwise an extremely vexed
issue.

Amnesties, Pardons or Criminal Trials? Impacts on Nation-Building from a
Theoretical Perspective

Criminal Trials

The main justification usually invoked for the use of criminal trials as mechanisms
for transitional justice is that through such trials, retribution may be meted out to
the perpetrators (that is, giving perpetrators what they deserve through
punishment).
473
Moreover, in a post-conflict setting, retribution is said to placate
the victims of state-sponsored atrocities.
474
It acknowledges their suffering,
475

provides them with a sense of security,
476
and legitimates them as just that,
victims, rather than criminals or dissidents.
477
Retribution is also said to minimise
the chance of vigilante-style revenge being carried out on accused persons, as
court-imposed sanctions constitute a finite and legitimate solution to wrongdoing.

471
Transitional Justice is the field of jurisprudence that debates the various means to reckon with
state-sponsored crime during the tenure of a prior regime (Shelton, 1045-1047); in particular,
transitional justice theorists are traditionally split into two groups, those who favour retributive justice
processes (such as criminal trials and lustration) versus supporters of restorative justice processes
(such as truth commissions and amnesties): Kiss, 1.
472
Drumbl, 600; Sarkin and Daly, 699; Kiss, 3; the large number of states that have made the
progression from violent beginnings to robust and peaceful democracies, without the aid of any
transitional justice measures at all are testament to this fact (Mendeloff, 367).
473
Drumbl, 559.
474
OConnell, 300; Sarkin and Daly (at 728) note here that different cultures have different levels of
emphasis on revenge and remorse, and consequently, retribution. This will influence whether or
not criminal trials are seen as the most appropriate transitional justice measure by both victims and
politicians.
475
Kiss, 11.
476
OConnell, 300.
477
Stanley, 585.

As such, fair and proportionate punishment can be meted out
478
that builds public
confidence in the ability of the judicial system to deal with serious crimes.
479

Finally, retribution replaces an ongoing collective responsibility for crimes with
individual responsibility, and therefore may assist in re-establishing the legitimacy
of political leaders and institutions, if they are indeed absolved by the trials.
480

Apart from retribution, other justifications for criminal punishment that have been
adopted in support of trials as transitional justice measures include:

deterrence;
the rehabilitation of perpetrators;
strengthening the rule of law; and,
enhancing the new states international image.
481

Deterrence is a type of utilitarian pre-emption, a strong statement through
accountability directed to possible future perpetrators that the crimes committed
before the change in political regime will never be tolerated again.
482
A vital
component of the deterrence justification is its application in erasing the impunity
previously enjoyed by perpetrators of serious crimes during the previous regime
(be they police, military, or civilians). Impunity is not merely the absence of
criminal punishment, but a failure to punish that reflects an official endorsement of
the perpetrators actions.
483
During the period directly after conflict, the abolition of
impunity through criminal trials can be an especially important step in regaining the
populations trust in the military, police and court system.
484

On the other hand, it has also been argued that the justificati ons of retribution and
deterrence can be used as a cover for hatred and vengeance.
485
Rather than
representing true closure of a violent past, a criminal trial may only result in
scapegoating through individualised accountability, neglecting the systemic causes

478
Phelps, 52; Kiss, 9; however, as Drumbl notes here on proportionality for international crimes: at
a certain point the massive nature of a crime makes retribution redundant insofar as human rights
standards do not permit perpetrators of mass violence to face punishment that much exceeds that
meted out for an ordinarily individuated case of violence in many places (at 580-581).
479
Judicial System Monitoring Programme, JSMP Submission to the Independent Special
Commission of Inquiry for Timor Leste, [3].
480
Teitel, 56.
481
Truth-seeking, or the investigation and public illumination of past wrongs in order to contribute to
or correct the public historical record, is seen as a key justification both by the proponents of
criminal trials (Drumbl, 593; Commission of Experts Report, [374]) and restorative measures (Kiss,
6). However, in the Timor-Leste example, a comprehensive reconstruction of the historical record
has arguably already been carried out by the CAVR in its compilation of Chega!, together with
Geoffrey Robinsons report for the United Nations Office of the High Commissioner for Human
Rights (Robinson, East Timor 1999), the KPP-HAM investigation, and a number of other
comprehensive reports that name individual suspects (see for example, van Klinken and Bourchier).
Therefore, these claims will not be considered as persuasive either way in this Chapter.
482
Elwood, 2; Drumbl, 588; Rapoza.
483
Sarkin and Daly, 719.
484
Jrvinen, 38; for a detailed account of the dangers of impunity for serious crimes in a post-
conflict society, see Russell Daye, Political Forgiveness: Lessons from South Africa. Maryknoll,
N.Y.: Orbis Books, 2004, 107.
485

of the violence.
486
Moreover, in response to deterrence theory, Drumbl recognises
that in circumstances where social order has been upended, perpetrators will not
necessarily act in the rational manner that underpins the theory:

Although there is little evidence to suggest that perpetrators of ordinary
domestic crimes will be deterred by the threat of punishment, there is even
less evidence arguably, none that punishment (or the threat thereof)
deters perpetrators of mass atrocity.
487

Rehabilitation is the reform of perpetrators behaviour to enable them to eventually
be reintegrated into society.
488
Obviously, it is questionable whether imposing a
lengthy prison sentence on a convicted person actually achieves this goal:
perpetrators who eventually emerge from prison with a score to settle belie this
assumption.
489
Accordingly, in the case of international tribunals prosecuting
international crimes of mass atrocity, the rehabilitation of perpetrators has been
largely disregarded as a factor influencing sentencing.
490

The rule of law is the contention that no-one is above the law,
491
and is seen as
one of the essential pillars in the process of democratisation.
492
One of its
consequences is the principle that all crimes are punished proportionally by the
state through legal means, rather than through personal reprisal.
493
Accordingly,
some scholars have argued that it is impossible to build a democratic society
based upon the rule of law if calls for criminal accountability for the acts of a
previous regime are ignored.
494
If an amnesty regime is created to absolve
perpetrators of state-sponsored crime, critics argue that this failure to prosecute is
a direct affront to the rule of law in a democratic system.
495
Criminal trials, on the
other hand, ensure that no arbitrary temporal line is drawn at the precise moment
of democratisation. Atrocities committed before the change in government are
tried and punished in exactly the same manner as those perpetrated afterwards.
496

486
Drumbl, 591.
487
At 609; emphasis added. Note also Sarkin and Daly (at 715): For lower-level wrongdoers, trials
may very well deter some people from committing crimes after all, it is often they who are
scapegoated. Here, however, other factors, such as peer pressure, opportunities for personal
advancement or remuneration, belief in the cause, or the perception of helplessness, may
counteract the deterrent effect.
488
Of course, some retributive punishments constitute a permanent exile from the community (eg
deportation, or the death penalty), however with most forms of punishment meted out in response
to a criminal conviction, the perpetrator has the possibility of eventually rejoining society (Kiss, 11).
489
490
Drumbl, 589.
491
Dicey, 202-203.
492
Jrvinen, 38.
493
Mendeloff, 361; William I. Jennings, The Law and the Constitution, 5
th
ed., London: University of
London Press, 1959, 51.
494
Marshall; Teitel, 54; Llewellyn and House, 359; Kristin Bohl, Breaking the Rules of Transitional
Justice, Wisconsin International Law Journal 24 (2006): 557, 583.
495
Laakso, 51; Amnesty International and Judicial System Monitoring Project, [11.2]-[11.3]; Slye,
197; Bohl, 583.
496
This mantra, although encapsulating the spirit of the rule of law doctrine, cannot always be
applied in a literal fashion, given the selective prosecution strategies that must be adopted in
bringing those who commit international crimes to justice. Given not every single crime can ever be

Finally, whether or not a state emerging from conflict is willing to prosecute key
political and military powerbrokers from the former regime may affect its
international image. Although this point is closely related to the legitimacy (or
otherwise) of amnesties for serious international crimes at international law,
discussed below, it is worth noting briefly that a new governments treatment of its
nations violent past may define its image in the eyes of the international
community.
497
A preference for criminal trials over restorative measures may
assist the new government in establishing good relations with nations with strong
human rights traditions and emphases.

Blanket Amnesties

The granting of blanket amnesties which exonerate all perpetrators of serious
crimes during the course of a previous regime share most of the general purported
benefits of restorative transitional justice processes. These include:
498

the ability of the new society to start afresh with a new moral code whereby
every citizen may be treated equally, especially if the view is taken that the
previous power structure lacked morality and hence did not constitute a
valid legal regime.
499
This development can be interpreted as aiding, not
impinging on, the development of the rule of law;
500

the reintegration of former perpetrators into the community, leaving open the
possibility of reconciliation with their former victims. Relationships between
perpetrators and victims previously defined by violence and harm can be
thereby transformed into those based upon decency, reciprocity and
respect.
501
Such results would be unlikely, if not impossible, with criminal
trials;
502
and,

prosecuted, often only the highest-ranking, most responsible culprits are indicted (Osiel, 1809-
1810; Teitel, 40; Sarkin and Daly, 713; see also Chapter Four, note 372, giving examples of
international and hybrid criminal tribunals that have adopted this type of prosecution strategy).
497
498
See also note 481 (above).
499
Geoff Gentilucci, Truth-Telling and Accountability in Democratizing Nations: The Cases Against
Chiles Agusto Pinochet and South Koreas Chun Doo-Hwan and Roh Tae-Woo, Connecticut
Public Interest Law Journal 5 (2005): 79, 87; Kiss, 6. Sarkin and Daly (at 727-728) note here that
different cultures attach different levels of importance to collective memory and the events of the
past: this will influence the necessity of starting afresh with a new moral code, or else attempting to
account for events occurring during the tenure of a prior regime.
500
Teitel, 54-55; note that Timor-Lestes Judicial System Monitoring Programme has argued that
the rule of law is better strengthened by the granting of amnesties on the basis of clear criteria
and through a fair, transparent and consistent process, than by a failed attempt to carry out
widespread criminal prosecutions (Judicial System Monitoring Programme, JSMP Submission to
the Independent Special Commission of Inquiry for Timor Leste, [5.6]).
501
Kiss, 12; however, freeing accused perpetrators will obviously not accomplish this goal alone:
reconciliatory measures attempting to redress the imbalance between perpetrator and victim will
have to be carried out concurrently (see Gusmao, Considering a Policy of National Reconciliation,
112).
502
Sarkin and Daly, 690-691.

leaving opportunity, time and money for a focus on institutional, rather than
individual accountability,
503
and moreover for the government and civil
society groups to assist the general population in their recovery from the
conflict through social justice measures.
504

On the other hand, unlike some other restorative approaches to transitional justice,
a blanket amnesty regime is not victim-centred
505
but in reality the opposite,
focussing on the interests of former perpetrators.
506
A programme of amnesties
does not demand that former perpetrators take responsibility for their actions nor
become accountable to their victims and former communities. Whereas for
example, truth commissions and reparations programmes emphasise public
shaming, restitution and reconciliation,
507
blanket amnesties achieve none of these
goals on their own.

In fact, for the majority of occasions during which blanket amnesties have been
considered an attractive transitional justice model for post-conflict governments,
one of two extenuating circumstances have existed. First, the prior immoral regime
was supported by a majority of the population, and hence a significant proportion of
the population might constitute perpetrators. In that situation, to bring to trial the
thousands of people who committed international crimes would be impractical, if
not impossible.
508
The second circumstance has arisen where the perpetrators
have somehow retained a measure of power in or over the new government. In
this scenario, the new regime is held hostage to the previous one, to the extent
that amnesties are granted in exchange for a relinquishing of power.
509

Conditional Amnesties and Pardons: A Compromise Position?

The advantages and disadvantages of criminal trials and blanket amnesty regimes
have been described above. Is it possible however to create a theoretical model
for a transitional justice scheme that combines the main advantages of both

503
Kiss, 14.
504
Gusmao, Considering a Policy of National Reconciliation, 116-117; Xanana Gusmao, On the
Occasion of the Inauguration of the New CAVR Headquarters, the Former Balide Prison, and the
Opening of the Public Hearings on Political Imprisonment, speech delivered in Dili, Timor-Leste, 17
February 2003, in Timor Lives! Speeches of Freedom and Independence, Alexandria, NSW:
Longueville Media, 2005, 136.
505
Kiss, 12; restorative justice processes (such as truth commissions, public apologies and
reparations) have been developed within a victim-centric framework to emphasise that the crimes
committed by a previous regime were crimes committed against the wellbeing of those victims,
rather than crimes that merely offend the conscience of the state in an abstract manner (Sarkin and
Daly, 693).
506
Jrvinen, 38.
507
Kiss, 13.
508
Sarkin and Daly, 684-685; Simon Chesterman, Rough Justice: Establishing the Rule of Law in
Post-Conflict Territories, Ohio State Journal on Dispute Resolution 20 (2005): 69, 77; Teitel, 40.
For example, the Rwandan government has estimated that to try all those accused of participating
in the 1994 genocide there by proper legal procedures would take two to four centuries (Sarkin and
Daly, 685).
509
Sarkin and Daly, 721; Robinson, Serving the interests of justice, 495; relevant examples are
amnesties granted to the former military leaders of Chile, Argentina and Uruguay (Chesterman, 76-
77).

options? In other words, what measures may act to effectively punish and deter,
yet also rehabilitate perpetrators and facilitate their re-entry into society?
Conditional amnesties and pardons may be the answer here.

Conditional amnesties can operate to provide some measure of retribution against
perpetrators (and may therefore satisfy some victims and their families), yet also
allow former perpetrators a new start in the community. Most importantly,
conditional amnesties can still function to defeat impunity, depending on how they
are framed and managed.
510
In order to convey a strong statement to the public
(and the international community) that the amnesty does not legitimate the crimes
committed, the amnesty should be:

1. Individual, so as to preclude blanket amnesties: each applicant must
submit themselves for consideration;
511
and
2. as mentioned, conditional, such that the amnesty is only granted in
exchange for something of value to society, rather than for the
performance of a pre-existing duty (i.e. to obey the law).
512

These requirements are exemplified in recent international legal practice, as
demonstrated in South Africa, Guatemala, Sierra Leone and of course through the
CAVRs Community Reconciliation Process in Timor-Leste.
513
The individual
amnesty requirement ensures that each perpetrator acknowledges and takes
responsibility for their own actions, whilst the requirement of conditionality
guarantees that the new government cannot be held hostage by the old regime
until amnesty is awarded.
514
The nature of the retribution meted out on the
perpetrators will depend on the precise conditional stipulations of the amnesty:
revealing the true extent of the perpetrators involvement in crimes at hand (and
hence publicly shaming the accused
515
); the payment of monetary or other
compensation to the victim and their family; assistance with community
reconstruction projects; or the supplying of information that may implicate
superiors, have all been either employed or suggested as conditions attaching to
such amnesties.
516

The second option, of pardons for convicted perpetrators,
517
would arguably
engender a similar effect. Pardoning a perpetrator through political means, after
he or she has served a few years of a prison sentence would:

510
511
Ibid.
512
Ibid.
513
Stahn, 954. For the CAVRs Community Reconciliation Process, the Community Reconciliation
Agreement signed by the perpetrator bestowed on them immunity from further criminal and civil
court proceedings in relation to the conduct listed in the Agreement (Chega!, Part 9, 10).
514
515
Teitel, 47.
516
Laakso, 49; Sarkin and Daly, 721; Chega!, Part 9, 32.
517
The terms pardon and amnesty are sometimes used in an overlapping fashion: a broader use
of the term pardon can refer to a complete foreclosure of prosecution, whilst amnesties are
sometimes awarded to convicted persons already serving prison terms (Orentlicher, 2543, note 14).
However, a pardon in the present context refers to the emancipation of a convicted criminal who
has already served part of their sentence.

maintain some measure of punishment for the imprisoned individuals
actions;
518
and,
as such, result in deterrence of that form of that conduct,
519
and hence not
compromise the abolition of impunity.
520

However, a pardon would also:

reduce the chance of the convicted person wanting to settle scores after
their release;
521

reintegrate perpetrators back into the community, providing the opportunity
for reconciliation and restitutionary measures with the families of their former
victims;
522
and
reduce the burden on the correctional services system.
523

Blanket/Conditional Amnesties and Pardons for Serious Crimes: the
International Law Position

Whilst international law does not take a position on the granting of amnesties for
purely domestic crimes,
524
it is strongly arguable that the provision of amnesties
(both conditional and unconditional) for the perpetrators of genocide, war crimes,
torture and crimes against humanity breaches international law.
525
This contention
is based upon the obligation to prosecute contained within international
conventions prohibiting genocide, war crimes and torture,
526
repeated UN General
Assembly resolutions condemning amnesties for such crimes,
527
and moreover the
guaranteed rights of victims of serious violations of international criminal law.
528

518
Gusmao, Considering a Policy of National Reconciliation, 123; Sarkin and Daly, 719; however,
OConnell (at 300-301) argues that as far as victims are concerned, it would be psychologically
unproductive for the perpetrators to receive penalties that a victim considers incommensurate with
the atrocities.
519
Mendeloff, 360.
520
Teitel, 54.
521
522
Ibid., 122.
523
Ibid., 121.
524
Slye, 178, 244-245.
525
Simunovic, 702-703; Jrvinen, 38; Hirst and Varney, 29; Stahn, 958 (note 50); International
Commission of Inquiry on East Timor, Report of the International Commission of Inquiry on East
Timor to the Secretary-General, UN Doc A/54/726 (31 January 2000), Part B, [5]; Bohl, 567; Slye,
245; moreover, the UN Secretary-General has expressly proclaimed that the United Nations will not
officially endorse amnesties granted for genocide, war crimes, crimes against humanity or gross
violations of human rights (Report of the UN Secretary-General on the rule of law and transitional
justice in conflict and post-conflict societies, [10]).
526
See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June
1987), Article 5(2); Convention on the Prevention and Punishment of the Crime of Genocide,
opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951), Article
VI; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Articles 146
and 148.
527
For example, United Nations General Assembly Resolution 3074 (3 December 1973), [1]: War
crimes and crimes against humanity, wherever they are committed, shall be subject to investigation

On the other hand, some commentators have argued that every nation emerging
from conflict with a democratically-elected government should have the right to
choose what type of mechanism it employs in dealing with a violent past,
529
and
moreover any method imposed from the outside would represent a new wave of
judicial colonialism.
530
However this contention relies upon an absolute form of
state sovereignty, the very doctrine that transitional justice theory and international
human rights law sets out to partially erode.
531
As noted by Drumbl, genocide,
crimes against humanity and war crimes should not be considered crimes that
merely violate domestic laws (such as those of Indonesia and Timor-Leste), but
should be considered crimes against the entire international community: offenses
[sic] against us all.
532
According to Bassiouni, the line should be drawn at
international crimes of a jus cogens character, which incorporate a duty to
prosecute or extradite.
533
It has been persuasively argued that genocide, crimes
against humanity and war crimes fit into such a group.
534

Therefore, despite the benefits of conditional amnesties as a transitional justice
mechanism, to create a regime of such amnesties for the perpetrators of serious
crimes would be in violation of international law.
535
Although Sarkin and Daly note
that crimes of state are both legal and political [and] [r]econstruction of community
likewise has both legal and political dimensions,
536
according to human rights
advocates, support for the international norms of human rights is a crucial part of
post-conflict reconstruction and democratisation,
537
not to mention ensuring the
continued credibility of the UN human rights monitoring system and international
law in general.
538

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, punishment.
528
Slye, 182-184; these are the rights to accountability, truth, reparations and popular participation
(at 240).
529
Thankur, 11; Ratner, 735-736; Nino, 134; Malamud Goti, 15.
530
Thankur, 11.
531
Kiss, 18.
532
Drumbl, 540; see also Teitel, 60.
533
Bassiouni, 65.
534
Ibid., 68: The legal literature discloses that the following international crimes are jus cogens:
aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related
practices, and torture (emphasis added); see also Restatement (Third): The Foreign Relations Law
of the United States, [702, n]; Amnesty International and Judicial System Monitoring Programme,
[11.5].
535
Slye, 245.
536
At 688; these comments have been echoed by President Gusmao (Gusmao, Volunteerism,
80).
537
Jrvinen, 38; Human Rights Watch, Relevant Aspects of Justice and the rule of law: the role of
the United Nations, taking into account the Report of the Secretary-General on The rule of law and
transitional justice in conflict and post-conflict societies, Available:
http://hrw.org/english/docs/2004/09/30/global9454.htm (1 October 2006); Report of the UN
Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies,
[6], [17], [31]; Amnesty International, AI Report 2004 - Building an international human rights
agenda: Reforming and strengthening the justice sector, Available:
http://web.amnesty.org/report2004/hragenda-4-eng (1 October 2006).
538
Drumbl, 592; Lao Hamutuk, Editorial: Commission of Truth and Friendship Brings Neither.

What of pardons? Obviously pardons for international crimes differ from amnesties
in the sense that the perpetrators subject to pardons will (usually) have been
convicted and sometimes will have served part of their sentence.
539
As compared
with the more established doctrine on the illegality of amnesties, pardons granted
at some stage after conviction for offences of a serious international criminal nature
have been more subject to dispute amongst jurists. Alston has held that:

amnesties, pardons and similar measures of impunity for genocide, crimes
against humanity and war crimes [are] measures that are prohibited under
international law when they prevent judicial determinations of guilt or
innocence, the emergence of the truth or satisfactory reparations.
540

Moreover, Ratner notes that:

the increased discussion of accountability especially the attention it has
received from the Human Rights Committee and the Inter-American
Commission and Court suggests that the prospects for a norm against
blanket amnesties for former officials is stronger than one against trials
followed by pardons of those convicted. It is notable that each amnesty
found illegal by a treaty monitoring body has been a blanket amnesty; those
bodies have not yet had a chance to opine about pardons.
541

According to these scholars, a pardon after conviction would not appear contrary to
international law standards. However, Orentlicher qualifies this contention by her
observation that:

the duty to punish grave violations of comprehensive human rights treaties
[such as the Genocide and Torture Conventions] surely would be breached
by a State Partys consistent failure to impose punishment commensurate
with the gravity of the crimes.
542

Regardless, it appears that amnesties, whether of a blanket or conditional nature,
attract a great deal more agreement over their illegality than do executive pardons
for the perpetrators of serious international crimes. Given pardons are not
conclusively ruled out by international law, they remain an attractive transitional
justice mechanism, if utilised for the right political ends.

Conclusion: Application to the Particular Circumstances of Timor-Leste

On the basis of the discussion above, I have identified executive pardons for
perpetrators as an ideal compromise between the conflicting options of criminal
trials and general amnesties.
543
However, for the retributive and restorative

539
Slye, 237; see note 517 (above).
540
Philip Alston, Richard Lillich Memorial Lecture: Promoting the Accountability of Members of the
New UN Human Rights Council, Journal of Transnational Law and Policy 15 (2005): 49, 82,
emphasis added.
541
At 744.
542
At 2605.
543
I did not reach a precise conclusion earlier as to whether or not executive pardons for serious
international crimes breach international law standards. If that did turn out to be the case, President

benefits of pardons to be realised, the pardon could only be granted where the
accused had already served part of their sentence. In the case of Timor-Leste, the
practical advantages of granting pardons to those individuals convicted by the
Special Panels were identified in Chapter Four. Given the solid theoretical basis
now advanced for those pardons, this would appear an appropriate course of
action for the executive government of Timor-Leste. There remain however three
groups of former perpetrators untouched by this recommendation and who remain
either not indicted, or at large:

1. perpetrators of crimes that were not the subject of SCU investigation, where
those individuals continue to reside in Timor-Leste;
2. those lower-ranking East Timorese perpetrators (mainly militia members)
indicted by the SCU but who are currently residing in Indonesia and hence
are outside of Timorese jurisdiction; and
3. those Indonesian security personnel accused of planning, commanding
and/or participating in militia operations, including individuals acquitted by
the Jakarta ad hoc Court and subsequent appeals, and those individuals
never indicted in Indonesia.

Referring back to the recommendations made in the conclusion to Chapter Four, in
synthesis with the theoretical approach outlined in the present chapter, those
individuals listed in the first group could be the subject of further investigations and
prosecutions by a renewed Serious Crimes Process, which could be carried out
within the programme of international assistance to be provided for through the
United Nations Integrated Mission in Timor-Leste.
544
If convicted, they too could
eventually be granted pardons after serving three [to] five years of their
sentences, as supported by President Gusmao.
545

Members of the second group identified above might interpret this more
conciliatory approach adopted by the government of Timor-Leste as an opportunity
to end their exile in Indonesia and hand themselves in to East Timorese
authorities. However, for those perpetrators residing in Indonesia who do not take
up this offer of clemency, there would appear to be little chance that they could be
brought to justice by any available means. As noted above,
546
any international
justice mechanism would have to focus on the highest-ranking perpetrators, that is,
those most responsible for the violations of international human rights and

Gusmao might consider granting pardons only to those militia members convicted of ordinary
murder (prosecuted under the Indonesian or East Timorese criminal code, and hence a domestic
crime), as opposed to murder as an element of a crime against humanity see Rome Statute,
Article 7(1)(a)). Of those perpetrators who (at least prior to a mass prison breakout on 30 August
2006 at Becora Prison in Dili), remained serving prison sentences having been convicted by the
Special Panels from 2000-2005, 17 were convicted for murder, 50 for at least one charge of crimes
against humanity, and one for genocide (Judicial System Monitoring Programme, Keterangan
Kasus SPSC untuk Tahun 2000/1/2/3/4).
544
See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [36]; UN
Security Council Resolution 1704, [4]; Chapter Four, Conclusion.
545
Gusmao, Considering a Policy of National Reconciliation, 121; however, see note 543 (above),
on the possible illegality of pardons for international crimes at international law.
546

humanitarian law.
547
Moreover, granting a blanket amnesty for those lower-level
perpetrators who do not return following the incentive of Presidential pardons
would be a direct affront to the rule of law in Timor-Leste (not to mention, a breach
of international law). A contradictory situation would result whereby those indictees
who hand themselves over at the first opportunity would have to serve a few years
in prison for their crimes, whilst those who wait in Indonesia for an amnesty law to
be approved by Parliament would enjoy impunity on their eventual return.

Given the failure of the Indonesian criminal justice system to convict any of those
accused of committing atrocities in Timor-Leste (bar Eurico Guterres), it would not
be possible for pardons to be granted to those individuals in the third group.
Moreover, the major advantages of blanket amnesty regimes described above (i.e.
reintegration of perpetrators into the community, beginning afresh with a new moral
code, making room for reconciliatory measures and relieving financial and logistical
burdens on the relevant government) are benefits that would not arise in the
present case with this third group of perpetrators, given that they are Indonesian
citizens whose emancipation would not bring into operation any of these
advantages in Timor-Leste. The circumstance peculiar to Timor-Leste that makes
the application of transitional justice theories problematic is manifest. While the
post-conflict initiatives (i.e. trials, amnesties) that the vast majority of newly-
democratised nations adopt will only affect the population and institutions of their
own nation, in the Timor-Leste example, the majority of perpetrators are currently
residing in Indonesia, whilst the majority of victims and their families reside in
Timor-Leste. Therefore, two nations are implicated here.
548

In Chapter Three I observed that President Gusmao favours amnesties being
granted to the Indonesian accused, for geopolitical reasons.
549
Additionally, it was
contended above that one of the two most common circumstances during which
blanket amnesties are proposed occurs when former perpetrators are able to
exercise some measure of power over the post-conflict government,
550
a
hypothetical that mirrors the present situation.
551
However, the theoretical key to
the present case is this: with the advent of international trials and the consequent
ability of the international community to bear the geopolitical burden of staging
such trials, the balance of power between perpetrators and victims is no longer the
foremost consideration in choosing a transitional justice model.
552
Given this fact,

547
Commission of Experts Report, [61]; Simpson.
548
Laakso, 52.
549
See Chapter Three, President Xanana Gusmao and the Executive Government of Timor-Leste.
550
See Blanket Amnesties, above.
551
It might be argued that the CTF-mandated amnesties proposed by the governments of Timor-
Leste and Indonesia are not blanket amnesties, but conditional amnesties, because a precondition
to their award is the subject of the amnesty fully revealing the truth of their involvement in human
rights violations (CTF Terms of Reference, [14c(i)]). However, as noted above (see note 481), a
comprehensive reconstruction of the historical record of international crimes committed in Timor-
Leste in 1999 has arguably already been carried out. Hence, it is unlikely that testimony obtained
through the CTF would be of substantial benefit to society, and would justify a foreclosure of
prosecutions against the witness.
552
Kiss, 7-8: here, it is noted that the ICTY was established during a time of continued instability in
the Balkans region, whilst the ICC has launched an investigation into the situation in Darfur, Sudan,
even whilst it is still unfolding.

and based upon the ample criminological justifications advanced above,
international trials are the most appropriate way to deal with this third group of
perpetrators.

Conclusion

By eliminating those practically, theoretically, and legally non-feasible institutional
options in response to the serious crimes committed in Timor-Leste in 1999 and
the subsequent failure of two judicial processes to bring all the perpetrators to
justice, the following possible avenues of action remain:

- For the UN Security Council:
o the mandate of the United Nations Integrated Mission in Timor-Leste
could be extended in order to reactivate the prosecutorial and judicial
components of the Serious Crimes Process, so that the planned
renewal of investigations into outstanding serious crimes cases
(including crimes other than murder) results in the conviction of
perpetrators who remain in Timor-Leste;
o a resolution could be passed to enable the International Criminal
Court to exercise a one-off retrospective jurisdiction over the
international crimes committed in Timor-Leste in 1999, with a view to
prosecuting the high-ranking planners and commanders of militia
operations (mainly Indonesian military officers), who have thus far
escaped punishment for their actions;
553
and,
o so as to fund collective and individual grants of reparations for victims
in Timor-Leste, access to the International Criminal Courts Trust
Fund for Victims could be authorised.

- For willing UN Member states:
554

o the use of universal jurisdiction to try those same high-ranking
perpetrators at large in Indonesia and elsewhere (and to allow civil
suits by Timor-Lestes victims) could be employed, where and when
this becomes possible;
o efforts could be made to encumber the lives of perpetrators living
outside Timor-Leste using diplomatic measures, based upon those
suspects listed in SCU indictments and Interpol Red Notices; and,
o additionally, financial contributions to the International Criminal
Courts Trust Fund for Victims,
555
or the Community Restoration
Programme to be established under the auspices of UNMIT
556
could
be made, in order to help finance reparations programmes.

- For the executive Government of Timor-Leste:
o pardons could be considered for those perpetrators already
imprisoned as a result of the Serious Crimes Process, so long as

553
Timor-Leste acceded to the Rome Statute on 6 September 2002, and therefore the ICCs spatial
jurisdiction allows the investigation of crimes that were committed within the territory Timor-Leste,
even if the perpetrators investigated are not of East Timorese nationality (see Rome Statute, Article
12(2)(a)).
554
As noted in Chapter Four, apologies from western states that supported the Indonesian
occupation of Timor-Leste may also be beneficial for reconciliation at an international level.
555
See International Criminal Court Resolution ICC-ASP/1/Res.6, Annex, [2].
556
See Report of the Secretary-General on justice and reconciliation for Timor-Leste, [39(d)(i)].

those individuals would be able to live peacefully within independent
Timor-Leste;
557

o perpetrators convicted of serious crimes by a renewed Serious
Crimes Process (as described above) could serve only partial
sentences, being pardoned after three or five years (this will depend
on the penalty and on [the perpetrators] behaviour);
558
and,
o East Timorese militia members returning from exile in Indonesia
(encouraged by promises of clemency) could be extended the same
treatment, if they were also eventually tried and imprisoned.
559

- For the Indonesian Government:
o financial contributions to the International Criminal Courts Trust Fund
for Victims,
560
or the Community Restoration Programme to be
established under the auspices of UNMIT
561
could be made;
562
and,
o in conjunction with the government of Timor-Leste, a decision could
be made to disband the CTF, as it has been effectively made
redundant as 1) a truth-seeking mechanism,
563
and 2) a source of
clemency for perpetrators residing in Indonesia and Timor-Leste (if a
programme of international trials for high-ranking suspects and
executive pardons for low-ranking suspects is followed).

However, most of the strategies listed above are unlikely to be adopted by the
major international players. It is extremely unlikely that the UN Security Council
would pass a resolution retrospectively extending the ICCs jurisdiction,
considering many western nations have been prepared to disregard calls for an
international justice process in Timor-Leste, in the interests of maintaining their
relations with Indonesia.
564
The worlds biggest Muslim nation is seen as key ally
in the war against terror,
565
a struggle that has drawn the worlds attention away
from issues such as Timor-Lestes struggles as an independent nation.
566

557
Whether or not an apology and/or confession has been given by a Timor-Leste based
perpetrator might be one the factors to be taken into account by President Gusmao in deciding
whether or not, and at what stage into the prison sentence, a pardon should be granted.
558
Gusmao, Considering a Policy of National Reconciliation, 121; see note 557 (above).
559
This strategy could be applied whether returning militia members are prosecuted within the
existing serious crimes framework in Timor-Leste (Chapter Four, note 387), or by a renewed
Serious Crimes Unit; additionally, see note 557 (above).
560
561
562
Note the CAVRs insistence that the Indonesian government pay reparations to victims (Chega!,
Part 11, [10.16]).
563
See Chapter Five, note 481, on the comprehensive documentation of the 1999 violence that is
already available.
564
Nevins, 163; note that a majority of Security Council members were uncomfortable in following
the recommendations of the UN Commission of Experts in September 2005 (Letter Dated
2005/09/28 From the President of the Security Council Addressed to the Secretary-General).
565
Jolliffe, Compromising Justice in East Timor; Harris-Rimmer.
566
Jolliffe, Human Rights Abuses and Impunity; Harris-Rimmer.

At present, although renewed investigations into serious crimes cases are likely to
take place within the new UNMIT framework,
567
there is no guarantee that those
cases will then be effectively prosecuted through Timor-Lestes currently weak
judicial system.
568
Moreover, far from being brought to justice for their alleged
actions, the serious crimes suspects at large in Indonesia will be granted amnesty
by the CTF if they cooperate with the Commissions truth-seeking agenda
569
over
the final 12 months of its mandate. Although this overall course of action may be
the safest for the East Timorese government to take in view of its vital economic
and security relationship with Indonesia,
570
the ongoing impunity enjoyed by both
low and high-ranking serious crimes perpetrators may continue to compromise the
rule of law,
571
democratic governance,
572
and societal cohesion in Timor-Leste,
573

not to mention constituting a failure to vindicate the victims of serious crimes
committed during 1999.
574

567
568
Jolliffe, Human Rights Abuses and Impunity; see also Chapter Four, note 393.
569
CTF Terms of Reference, [14c(i)].
570
See Chapter Four, Judicial versus Non-Judicial Mechanisms: General Outcomes, and
Amnesties authorised by the Commission of Truth and Friendship, together with Presidential
Pardons.
571
Marshall; Teitel, 54; Llewellyn and House, 359; Bohl, 583.
572
Jrvinen, 38; in Chapter Four, I noted that there is a social consensus amongst East Timorese
for punitive justice to be carried out, at least against the highest-ranking suspects (Roper and
Barria, 533; Commission of Experts Report, [381]).
573
Hasegawa; Marshall; Amnesty International, Timor-Leste: All parties must act resolutely to
ensure justice for both current and past violations of human rights; East Timor Action Network,
ETAN Statement on Recent Events in Timor-Leste.
574
Cohen, ii; Harper, 150.

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