The Commission of Truth and Friendship Indonesia-Timor Leste: Competing

Concepts of Justice

Andrew Harrington Joint B.A (Hon.), LL.B / M.A. International Affairs

Norman Paterson School of International Affairs & Faculty of Common Law, University of Ottawa

Joint Candidate Contact: andy_harrington78@hotmail.com

02/12/2007

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A Klee painting named “Angelus Novus” shows an angel looking as though he is a bout to move away from something he is fixedly contemplating. His eyes are staring, his mouth is open, his wings are spread. This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress.

Benjamin, Walter. “On the Concept of History.” Gesammelten Schriften I:2.

Suhrkamp Verlag. Frankfurt am Main, 1974, IX

(Translated from original in German)

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Background1 Timor-Leste (formerly East Timor) shares half the island of Timor with Indonesia and has

less than one million inhabitants. It is a village-based society with diverse, yet strong, cultural

traditions. The country has a violent history. After a brief civil war, Timor-Leste declared

independence from Portugal in 1975 and was invaded and occupied by Indonesian forces nine

days later. It was illegally annexed as the province of Timor Timur. Over the next twenty-

four years, Indonesia waged a brutal counter insurgency campaign against the Timorese in

which between 104,000 to 183,300 Timorese were killed, starved, and executed.2 Under

intense international pressure, the United Nations (UN) supervised a referendum on

independence for August 1999. Despite a violent run up, 78.5% of Timorese voted for

independence.3 Violence erupted within hours; pro-integration militias (organized, trained,

and explicitly supported by Indonesian military) and elements of the Indonesian military

completed a countrywide scorched-earth campaign. Destruction was complete; homes, water

supplies, schools, government buildings, private businesses, and the country’s entire electrical

grid were destroyed. An estimated 2,000 Timorese were killed, 300,000 more forced into

Indonesian West Timor, and a full two-thirds of the population was displaced. Almost over

night, the nation ceased to exist. Following three years of UN administration, Timor-Leste

became an independent nation on May 20th, 2002 after nearly 425 years foreign rule.

Transitional Justice Attempts In response to violence in Timor-Leste, four separate transitional justice processes have been

attempted. The first was in Indonesia as part of that nation’s own transition from Soeharto’s

1 See: Timeline of UN Presence in Timor-Leste. United Nations Office in Timor-Leste. <http://www.unotil.org/UNMISETWebSite.nsf/TimeLineofUNMISET.htm?OpenPage> (Accessed November 19, 2007) and: Country Profile: East Timor. BBC News (Monday, 26 June 2006) <http://news.bbc.co.uk/2/hi/asia-pacific/country_profiles/1508119.stm> (Accessed November 19, 2007) 2 See: Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) Part 12, Annex 2: Date and Statistical Methods. Archived on: ETAN.org- East Timor Action Network <http://www.etan.org/news/2006/cavr.htm> (Accessed November 19, 2007) 3 The actual referendum question asked the people of Timor-Leste whether they wanted “special autonomy” within Indonesia, or not; a “No” vote was in essence a vote for outright independence.

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kleptocracy to democracy, and under intense international pressure to punish those

responsible for 1999 violence. The National Commission of Inquiry on Human Rights

Violations in East Timor (KPP-HAM) was established in September 1999, followed by the

Ad-Hoc Human Rights Court for prosecutions. The KPP-HAM mandate was limited to

gathering data and information regarding human rights violations between January and

October, 1999.4 The process was viewed as ineffective,5 though ‘successful’ in exonerating

the guilty and burying the truth;6 some blame the UN for failing to support the process.7

The second attempt was more successful; the Special Panel for Serious Crimes in East

Timor (SPSC) was established under a UN mandate and granted exclusive and universal

jurisdiction for offences between January 1st and October 25th, 1999.8 Despite successful

prosecutions, when it ceased operating in May of 2005, 339 of the 440 persons indicted

remained in Indonesia – outside the court’s jurisdiction.9

4 Executive Summary Report on the investigation of human rights violations in East Timor. Jakarta, January 31, 2000. Archived on East Timor Action Network site. <http://www.etan.org/news/2000a/3exec.htm> (Accessed November 19, 2007) 5 Of 18 defendants brought before the ad hoc human rights court, 12 were acquitted and six convicted; five of the convicted were then acquitted on appeal, while the sixth – Eurico Guterres – remained free pending appeal, which was rejected in 2006 and he began serving the only jail sentence to come from the proceedings, at 10 years, minus time served. 6 “Pro-Jakarta militia leader, Eurico Guterres, begins sentence” Financial Times, Jakarta (May 4 2006). Archived on East Timor Action Network. <http://www.etan.org/et2006/may/01/04pro-j.htm> (Accessed November 21, 2007); “Indonesia - East Timor CTF: Why the UN must boycott it?” Review: 178/07 (August 1, 2007). <http://www.achrweb.org/Review/2007/178-07.htm> (Accessed November 21, 2007); and see generally: David Cohen, “Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta.” International Center for Transitional Justice, Occasional Paper Series (August 2003). (“Cohen”) <http://www.ictj.org/images/content/0/9/098.pdf> (Accessed November 21, 2007) 7 “Former foes seeking truth and friendship” Ati Nurbaiti Opinion News – Jakarta Post, Dili (Tuesday, October 16, 2007). (“Nurbaiti”) <http://www.thejakartapost.com/misc/PrinterFriendly.asp> (Accessed November 20, 2007) 8 UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. UNTAET/REG/2000/15, Section 2.3. <http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf> (Accessed November 19, 2007) 9 “Digest of the Jurisprudence of the Special Panels for Serious Crimes” Judicial Systems Monitoring Programme; JSMP Report Dili, Timor Leste (April 2007), pp 14-15. <http://www.jsmp.minihub.org/Reports/2007/SPSC/SERIOUS%20CRIMES%20DIGEST%20(Megan)%20250407.pdf> (Accessed November 19, 2007)

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The third attempt was the Commission on Reception, Truth, and Reconciliation

(CAVR). The CAVR was mandated to record human rights violations and political violence

in Timor-Leste between April 25th, 1974 and October 25th, 1999.10 The final report, “Chega!”

(“Enough!”), generated a detailed narration of human rights violations before 1999 and a

series of forward-looking recommendations. However, former Timorese President and

guerrilla leader Xanana Gusmão11 criticized the recommendations, noting “the grandiose

idealism that they possess is well manifested to the point that it goes beyond conventional

political boundaries.”12 As Dionisio Babo Soares13 comments, the recommendations may

fulfill the expectations of domestic and international critics, but were exaggerated “so far

beyond reasonable thinking” leaving them destined to “remain merely as ‘nice findings’ in the

book shelves of history.”14 Gusmão’s pressure and a ‘tepid’ reception by Parliament meant

the document was not circulated as broadly as envisioned, thus limiting its impact.15

10 Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth, and Reconciliation in East Timor UNTAET/REG/2001/10 (13 July 2001) <http://www.un.org/peace/etimor/untaetR/Reg10e.pdf> (Accessed November 19, 2007) 11 His comments and ability to move forward in reconciliation are of particular import since he was not merely President at the time, but had also been the leader of the country’s guerrilla resistance, having fought countless times against Indonesian occupiers. 12 Speech of His Excellency President Kay Rala Xanana Gusmão on the Occasion of the Handing Over of the Final Report of the CAVR to the National Parliament (28 November 2005). Archived by JSMP. (“President’s Final Report of CAVR to National Parliament”) <http://www.jsmp.minihub.org/News/2005/December/011205_XG%20Speech_eng.htm> (Accessed November 19, 2007 13 Dionísio Babo Soares is Co-Chairman of the Timorese side of the Commission of Truth and Friendship Timor Leste – Indonesia and one of the foremost experts on indigenous culture and justice in Timor-Leste. His position could be seen to bias him on a number of key issues, but his background as an impartial academic his reported initial reluctance to accept the appointment temper this. 14 Dionísio Babo Soares, “East Timor: Reconciliation and Reconstruction” East Timor Law Journal; 2007 ETLJ 3. (Co-Chairman: Commission of Truth and Friendship Timor Leste – Indonesia, East Timor Political Development) (“Babo Soares”) <http://www.eastimorlawjournal.org/ARTICLES/2007etlj3easttimorreconciliationandreconstructiondionisiosoares.html> (Accessed November 20, 2007) 15 For a scathing indictment of this inaction, see generally: “The Dissemination of "Chega!”, Final Report of the CAVR." Judicial Systems Monitoring Programme Justice Update, No. 15 (November 2006). http://www.jsmp.minihub.org/Justice%20update/2006/Ju%20CHEGA%20CAVR/JU%20CAVR%20English.pdf> (Accessed November 21, 2007)

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Commission on Truth and Friendship (CTF) Criticisms over the recommendations aside, the CAVR was hardly a failure; it was highly

successful in reintegrating former militia members, providing a forum (modeled on Timorese

traditional justice) for individual victims and perpetrators to share their experiences, referring

numerous cases to the SPSC, recommending the establishment of an international criminal

tribunal, and wove the first national narrative of blood and suffering.

Despite the three previous attempts at transitional justice, a gap persisted between the

international and NGO16 community’s lust for “justice” and the Indo-Timorese desire for

“justice” on their own terms. In an “interesting experiment”, underscoring of the importance

attributed to attaining a “justice” of their own design and import, Timorese and Indonesian

leaders17 scripted a fourth joint transitional justice process on the 14th of December, 2004 in

Bali.18 The preamble of the CTF-Terms of Reference (TOR) emphasizes the novelty,

explaining it to be a “new and unique experience whereby two countries, with a recent shared

history, agree with courage and vision to look at the past as a lesson and embrace the future

with optimism.”19 The approach differs notably from ‘traditional’ concepts of transitional

justice, insofar as it focuses on reconciliation and friendship between nations, not individuals

or groups. The international border between Timor-Leste and Indonesia may seem an illusory

concept – especially since the countries were ‘one’ for 24 years – but that border is precisely

what so many Timorese died for.

16 Non Governmental Organization. 17 H.E. President Susilo Bambang Yudhoyono and H.E. Vice-President Jusuf Kalla and the leaders of the Democratic Republic of Timor-Leste as represented by then-H.E. President Kay Rala Xanana Gusmão and then-H.E. Prime Minister Mari Alkatiri. 18 Commission of Truth and Friendship Indonesia-Timor Leste. About the Commission (Saturday, 05 August 2006) <http://www.ctf-ri-tl.org/ctf1/index.php?option=com_content&task=view&id=62&Itemid=43> (Accessed November 19, 2007) 19 Terms of Reference for The Commission of Truth and Friendship Established by The Republic of Indonesia and The Democratic Republic of Timor-Leste, s. 11, preamble. (“CTF Terms of Reference”) <http://www.ctf-ri-tl.org/ctf1/index.php?option=com_content&task=view&id=61&Itemid=44> (Accessed November 19, 2007)

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This paper analyzes the CTF’s mandate, criticisms against it, and its supporting

arguments. The debate over the CTF can be distilled into the two camps; 1. The “principled

position”, which sees international penal justice proponents demanding justice out of

‘principle’, and who see justice and the ‘rule of law’ as goals in and of themselves, rather than

processes; 2. The “realist position” which sees justice as means to an end, namely stability,

peace, democracy, and good governance, and thus are willing to pursue various modes of

justice with the process being just as much an end as the final outcome itself. The realist

camp would dispense with penal justice were it unable to contribute to the ‘ultimate goal’,

whereas the principled position dogmatically pushes for prosecution. The principled position

criticizes the process as failing to deliver international justice, ‘whitewashing’ the past and

ignoring victim concerns.20 The realist camp sees the CTF as an ends-driven process and

representative of a genuine attempt by both nations to move beyond their shared violent past,

thus achieving their own definition “justice”, rooted in shared collectivist cultural values.

Regardless of the outcome of the CTF as ‘success’ or ‘failure’ in the eyes of either camp, the

findings do not bar Security Council action in establishing an international tribunal.

CTF Mandate and “Justice” The CTF-TOR carefully notes the process is neither a uniform accommodation to ‘victim’ or

‘perpetrator’ concerns, but part of a joint – yet simultaneously individual – forward-looking

transitional process, which itself is an end, just as is the final outcome. Almost apologetically

the CTF-TOR explicitly acknowledges the complexity of Indonesia’s transition, chiefly the

political reforms which began only at the end of Soeharto’s reign in 1998:

in the history of countries and peoples, all and any change of an old political system requiring a radical transformation, entails as an almost inevitable consequence different challenges of multi-dimensions. The fact remains that in Indonesia, an archipelagic nation with a great diversity, the process of political transformation has been even more complex than in any other country.21

20 See: “Open Letter to United Nations Security Council” (November 2007). Signed by more than 50 NGOs. <http://www.etan.org/news/2007/11unscltr.htm> (Accessed November 26, 2007) 21 Ibid, s. 5.

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The granting and receiving of independence were single steps in the transition to democracy

for both countries; coming to terms with the violence associated with that birth is another.

While calls for “justice” under the prosecutorial model persist, to this date, they have

remained just that, “calls”.22 Faced with international inaction, Indonesia and Timor-Leste

together opted for truth and friendship. The nations articulated their own definition of

“justice” as a goal and concept served best by truth and acknowledging of responsibility.

While noting the usefulness of the prosecutorial model of justice, the CTF-TOR asserts it may

neither lead to truth, nor promote reconciliation.23 The prosecutorial model is at odds with

CTF’s stated goals and principles which see the process driven by a desire to resolve residual

problems of the past and deepen bilateral relations between the nations and people.24

Accordingly, the foundational principles establish a forward looking bilateral reconciliatory

approach intended “to bring to a closure a chapter of [the] recent past through joint efforts.”25

The CTF’s temporal jurisdiction is limited to “events prior to and immediately after the

popular consultation in 1999.”26 As such, the 24-year occupation period is excluded.

Perhaps the most controversial features of the CTF are the envisioned outcomes which

conform faithfully to a non-prosecutorial definition of “justice”. The CTF is to produce a

“shared historical record” including the facts, nature, causes, and extent of 1999 violations by

examining and reviewing findings from the flawed KPP-HAM, SPSC proceedings, CAVR

22 For example, a Commission of Experts has openly recommended to the Security Council that an ad hoc international criminal tribunal should be established. See generally: Letter dated 24 June 2005 from the Secretary-General addressed to the President of the Security Council. United Nations Security Council S/2005/458 (15 July 2005) <http://www.etan.org/etanpdf/pdf3/N0542617.pdf> (Accessed November 26, 2007) 23 Ibid, s. 10. 24 Ibid, s. 7. 25 Ibid, ss. 7 & 8. 26 Ibid, s. 12.

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processes, and interviews.27 This is distinguishable from previous attempts in both countries,

as they focused on “perpetrator-against-victim” narratives, rather than a shared historical

account. The CTF is further mandated to devise methods and recommendations to “heal the

wounds of the past, to rehabilitate and restore human dignity.”28 Mindful of the transitional

situation’s complexity, it focuses on institutional responsibility, rather than the individual

responsibility of a penal approach,29 and thus is granted the ability to “recommend” amnesty

for those who cooperate fully in revealing the truth – irrespective of their crime.30

Critique and Controversy: Victim-Centered Concerns As explained in the CTF-TOR, for reconciliation and friendship to be achieved at the

international level, it presupposes this has already occurred at the interpersonal level.31

Critics assert, however, that this is clearly not the case. Consequently, the CTF fails to

accommodate victims’ quests for “justice” – either in the truth and reconciliatory or

prosecutorial notion.32 Indeed the word, “victim” is conspicuously absent from the CTF-

TOR. As one protester complained, “The CTF only defends the criminals and stands in the

way of justice. They don't hear the victims' voices.”33

Even when victims do testify, a disconnect between the CTF’s concern with their

testimony and victim expectations is apparent; depositions are not meant to determine guilt or

satisfy a victim’s desire to be heard, but only to answer questions about how “it” happened.

As Commissioner Lt. Gen. (ret) Agus Widjojo explained in an interview:

27 Ibid, s. 14, ss. a & b. 28 Ibid, s. 14, ss c, i-iv. 29 Ibid, s. 13, ss b & c. 30 Ibid, s. 14, ss c, i-iv. 31 Ibid, s. 7. 32 “Between the truth and friendship” Jakarta Post Opinion News (Thursday, September 27, 2007) Agung Yudhawiranata, Jakarta. Archived by East Timor Action Network. (“Yudhawiranata”) <http://www.etan.org/et2007/september/29/27ri-tim.htm> (Accessed November 20, 2007) 33 “Protesters demand justice as East Timor probe closes.” The Taipei Times. Agencies, Dili (Wednesday, Sep 26, 2007) Page 4. <http://www.taipeitimes.com/News/world/archives/2007/09/26/2003380470> (Accessed November 20, 2007)

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Friendship between the two countries cannot be burdened too much by the perception of wrong or not wrong. But it should be placed within the moral and political responsibility, to agree to seek a closure on past mistakes and build friendship based on reconciliation.34

Widjojo continued, noting the CTF is a “political process, not a legal one” which created the

challenging task of conveying to the public that the CTF is political, not legal as most

expected.35 This subtle, yet paramount distinction is difficult for victims to understand – and

even for the Commissioners on occasion who, Widjojo explained, frequently struggle “to

obtain an analysis designed to differ from a judicial one,” and to avoid slipping “into merely

finding who [is] guilty.”36 The impact of this subtle distinction on CTF legitimacy is aptly

demonstrated by ‘cyber-graffiti’ under Widjojo’s interview on the Jakarta Post website:

Comment From: “truth and what?” Niether [sic] the UN or anyone else even bothers to read the text of articles on this any more. The CTF and you are talking to yourselves. 37

The general complaint that victims are ignored is strongly supported by the locations of CTF

proceedings; almost all activities took place in either Denpasar or Jakarta,38 thus excluding all

Timorese but for officials and offering a clear ‘home-team’ advantage to Indonesian officials

many of whom are still regarded as national heroes in the Indonesian narrative of events.

Only the final session took place in Dili.39 However, even at the Dili hearing, Timorese

leaders40 chose to testify behind closed doors, preventing any possible vindication or

34 Progress 'very slow' in truth and friendship body. The Jakarta Post-Headline News (October 12, 2007). (“Progress 'very slow' in truth and friendship body”) <http://www.thejakartapost.com/detailheadlines.asp?fileid=20071011.A06&irec=5> (Accessed November 20, 2007) 35 Ibid. 36 Ibid. 37 Ibid. 38 Programs and Activities of the CTF. <http://www.ctf-ri-tl.org/ctf1/index.php?option=com_content&task=category&sectionid=5&id=25&Itemid=48> (Accessed November 29, 2007) 39 Even though it was held in the Timorese capital, the vast majority of Timorese victims live in abject poverty and often find transport to Dili difficult, let alone passage to Bali or Jakarta; the CTF itself is bi-nationally funded, not internationally, and lacks the necessary resources to facilitate deponents travels. 40 These include former President, guerrilla leader, now Prime Minister, Xanana Gusmão, and former guerrilla, current Brigadier-General Taur Matan Ruak, Commander of the Timorese Defence Forces "Xanana testifies before CTF" UNMIT Daily Media Review - 25 September 2007 (Archived by East Timor Action Network)

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satisfaction for Timorese listening to their leaders’ depositions. The failure to balance victim

and perpetrator narratives and concerns may, in one author’s lament regarding the outcome of

Ad Hoc Human Rights Court, allow Indonesian officials to continue to cling “to a version of

the violence in East Timor that is accepted nowhere outside of Indonesia,”41 a version in

which Indonesian troops nobly “parachuted into Dili in 1975 to defend against communism

and help build up a poor neglected former Portuguese colony; and [… ] received nothing in

return but international scorn,” particularly in 1999.42 The failure to adequately hear and

address victims and the CTF’s limited temporal jurisdiction which isolates 1999 events

historically – both increase the likelihood of a myopic account, removed from root causes.

That said, the critiques above rely on a misinterpretation of the CTF’s mandate, which

as written, has little concern for individual victims and much more for a shared narrative and

reconciliation. This requires what Borneman refers to as “confessions”, meaning a focus

primarily on the perpetrator, with confessions ‘coerced’ in some manner in addition to victim

witnessing and truth-telling.43 Following Commissioner Widjojo’s interpretation of the

CTF’s mandate, since the CTF is a bilateral international institution – concerned exclusively

with interstate affairs, not victim-perpetrator– attention to victims ought to be materialized

through domestic policies in each country individually, not through the CTF. 44

Overall, as a respected Timorese human rights organization ‘La’o Hamutuk’ (“Walk

Together”) notes, reconciliation between the two governments cannot substitute reconciliation

<http://www.etan.org/et2007/september/29/dailym25.htm> (Accessed November 23, 2007; and: East Timor Forces Commander Appears Before Truth Commission. AFP (September 28, 2007). (Archived on Indonesian Embassy in Ottawa website) <http://www.indonesia-ottawa.org/information/details.php?type=news_copy&id=4760> (Accessed November 23, 2007) 41 Cohen, supra, note 4. 42 Nurbaiti, supra, note 5. 43 John Borneman, “Reconciliation after Ethnic Cleansing: Listening, Retribution, Affiliation.” Public Culture 14(2): (Duke University 2002) p 289. (“Borneman”) 44 Progress 'very slow' in truth and friendship body, supra, note 26.

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between the people of those nations – which they, among others, argue has not occurred. A

logical precondition to reconciliation is the proper identification of the parties to be reconciled

and to ensure their genuine acceptance and participation. Without full participation by victims

and perpetrators – who in this case many observers argue remain the individuals involved, not

states – the CTF's version of reconciliation “can only be a sham.”45

This view, however, presupposes the international criminal approach is ‘better’ in

addressing victim concerns. The reality, however, is the international criminal model turns

victims into purpose-driven cogs in an impersonal criminal machine; their statements are

‘valuable’ only insofar as ‘evidence’ in establishing in a prosecutor’s case.

Amnesty and Justice Concerns Many CTF criticisms are directed against the CTF mandate, specifically against the focus on

perpetrator testimony and power to recommend amnesty. These aspects lead some NGO

critics, like Judicial Systems Monitoring Programme (JSMP), to view the CTF as designed to

“shield from prosecution those who bear primary responsibility for crimes committed in

Timor Leste under the guise of a[n uncertain] truth and reconciliation function.”46

Returning to Commissioner Widjojo, he notes the CTF does not seek to restore dignity

only to ‘victims’ through ‘truth’, but also to ‘perpetrators’.47 Johny Marques, a former leader

of the ‘Alfa’ militia serving a 33-year sentence for various counts of murder, indicated during

his testimony another disconnect between what perpetrators expected and what the CTF’s

actually mandate entailed: “For the sake of friendship between the two nations, why should it

45 “Commission of Truth and Friendship Brings Neither.” La’o Hamutuk Bulletin Vol. 6, No. 3: August 2005. (“La’o Hamutuk Bulletin #6”) <http://www.laohamutuk.org/Bulletin/2005/Aug/bulletinv6n3.html#Editorial:_Commission_of_Truth_and_Friendship_Brings_Neither__>(Accessed November 8, 2007) 46 ““Commission of Truth and Friendship” Seeks to End the Search for Justice whilst “Commission of Experts” Keeps it Alive.” JSMP Press Release (14 March 2005). (“JSMP Press Release March 2005”) <http://www.jsmp.minihub.org/Press%20Release/2005/ComparingCTFandCoE(e).pdf> (Accessed November 21, 2007) 47 Progress 'very slow' in truth and friendship body, supra, note 26.

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be only Alfa members like myself who are singled out for accountability?” 48 Perversely, it is

as one critic asserts: “the public hearings have become forums for alleged perpetrators to

attempt to rewrite history by blaming the victims and the United Nations.”49 Judging by

Marques’ deposition – who is not alone in his feeling of abandonment – the above statement

should be qualified insofar as the hearings have become forums for some alleged perpetrators,

namely the very Indonesian officials who likely bear the greatest responsibility. As one

reporter noted, this seems partly because the CTF mandate is

not to find who is guilty, but instead to answer questions about how it happened and how similar crimes can be prevented in the future. The tricky part: since both parties want to be friends, the villain must not be made to look too bad50

Thus when Major General Kiki Syahnakri, Commander of the Indonesian military in East

Timor in September 1999 (who has been indicted, with arrest warrants issued for crimes

against humanity) spoke at the CTF, it was not to accept responsibility and reconcile, but to

save face and foist blame for 1999 violence onto the UN, who he asserts actively “conspired

to sway the vote in favour of independence and should [therefore] share the blame for the

mayhem.” 51 He further insisted Indonesia could not be held entirely responsible for the

violence, and pointed instead at the international community – particularly Portugal – alleging

complicity in 1999.52 Instead of fulfilling Borneman’s confessional role anticipated in this

type of setting, senior Indonesian deponents have been defiant, themselves accusatory, and

focused on exonerating themselves by fingering others. Because the CTF seeks to avoid

48 Nurbaiti, supra, note 5. 49 “NGOS call for closure of CTF” AKI News, Jakarta (25 May, 2007), archived on East Timor Action Network. <http://etan.org/et2007/may/31/25ngo.htm> (Accessed November 8, 2007) 50 Nurbaiti, supra, note 5. 51 “U.N. Shares Blame for Timor Riots, Indonesia Says” Reuters News, Telly Nathalia (October 24, 2007). <http://www.reuters.com/article/latestCrisis/idUSJAK170157> (Accessed November 20, 2007) 52 Ibid.

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“making the villain look too bad”, the CTF alleged perpetrators accounts have not been

vigorously cross-examined leaving the accuracy of their ‘confessions’ unclear.53

This problem may stem in part from the controversial, yet seemingly misunderstood,

amnesty provision in Article 14(c)(i). It must be remembered that the CTF works not under a

‘legal’ mandate, but rather ‘political’. Accordingly, the CTF has no power to grant

amnesties, but only to recommend them. It thus seems unimportant whether officials

“cooperate fully in revealing the truth” since the CTF can offer nothing other than a

recommendation. These recommendations have little significance; even if Indonesian

officials subsequently gain amnesty, it would relate to acts for which little threat of domestic

prosecutions existed in the first place. Conversely, despite Article 13(e) which asserts CTF

findings and proceedings are “without prejudice” toward ongoing or possible judicial

processes related to 1999 violence, deponents may actually stand to ‘lose’ because the

without-prejudice principle is restricted to domestic proceedings in either nation – but

incriminating evidence could be used in UN Security Council-mandated international tribunal

since the amnesty provision cannot extend beyond the jurisdiction of both nations.

In sum, there seems a disincentive to cooperate fully and an incentive to actively

defend one’s self-benefiting version of the truth. Borneman’s ‘confession model’ is

confounded; despite the primary focus on perpetrator confession, neither carrot nor stick

exists to ‘coerce’ an honest confession or to seek forgiveness.54 However, it is understandable

why the ‘Alfa Militia’ member was more forthright in his role as “confessor” than Indonesian

53 Yudhawiranata, supra, note 24. 54 Borneman, supra, note 33.

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leaders; the possibility even of a mere ‘recommendation for amnesty’55 would seem attractive

given his 33-year sentence.56

Regardless of how one interprets the amnesty provision, in July 2007 the UN

announced it would not ‘dignify’ the CTF by attending. Secretary General Ban Ki Moon

prohibited former UNAMET57 staff members from testifying, specifically

because UN policy state the Organization cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, and must not do anything that could foster them. Thus, because the CTF can recommend amnesty as such, UN staff have been banned.58

Parts of the UN have consistently called for an international tribunal to try 1999 perpetrators,

yet nothing concrete has been done to reify those demands. Conversely, the necessary

international political support seems absent in the Security Council, thus there has been no

action on the CAVR and/or Commission of Expert recommendations.59

Positive Aspects: Acting in the Face of Inaction With these criticisms in mind, it is important to view them against some of the factors

motivating the CTF. Cohen, a CTF advisor, argues the CTF may actually draw strength from

criticism, pointing out that South Africa's truth commission also resulted in amnesty for many

perpetrators; despite resistance to the idea, the international community eventually accepted

55 The Judicial Systems Monitoring Programme argues any post facto amnesty for those already incarcerated would violate the Timorese Constitution. The constitutionality has yet to be legally determined. See: “The Constitutionality of the Commission of Truth and Friendship.” Justice update Issue 8/2005, Period: 9 – 18 March 2005 <http://www.jsmp.minihub.org/News/March%202005/18mar05_jsmp_the_eng.htm> (Accessed November 26, 2007) 56 JSMP Press Release March 2005 supra, note 36. 57 United Nations Assistance Mission in East Timor. 58 “Secretary-General Says UN Officials Will not Testify at Timor-Leste Commission, as Terms of Reference Include Possible Amnesty for Human Rights Violations.” Department of Public Information Secretary-General, SG/SM/11101 (26 July 2007) <http://www.un.org/News/Press/docs/2007/sgsm11101.doc.htm>(Accessed November 8, 2007) 59 “Timor-Leste and Indonesia: Between a Rock and a Hard Place” Geoffrey Gunn and Andre Vltchek ZNet | Asia (October 23, 2007) Archived Japan Focus. <http://www.japanfocus.org/products/details/2549> (Accessed November 22, 2007)

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the South African Truth Commission and its outcomes.60 While elements of the UN and

NGOs continue to pressure for “justice”, the Timorese Chairperson argues

one should not underestimate the ‘good political will’ of both [countries] to present an alternative way of seeking justice for the victims, [in] the restorative justice approach experienced already in Chile, Argentina, Guatemala, South Africa and Timor Leste itself.61

He notes Timorese leaders remain convinced little support for an ad hoc international tribunal

in the Rwanda/former-Yugoslavia mould exists – or will exist.62 Some misplace their

frustration with the international community’s failure to address the 1999 violence onto the

CTF. It is important to remember that in lieu of an international tribunal to punish those

responsible for 1999, the UN and international community deferred to Indonesia to establish

the KPP-HAM and Ad Hoc Human Rights Court, and established the SPSC with enforcement

jurisdiction expressly limited to Timorese soil – despite academic and NGO protestations.

Regardless of the obvious failure63 of Indonesian proceedings (which some also blame on the

UN for failing to support it64) and the current CTF boycott, no serious international political

will exists to establish such a ‘true’ international tribunal. This may be, as Dionisio Babo

Soares notes, because the “international judicial atmosphere provides little room for

‘undefeated’ countries like Indonesia” to see it citizens tried by an international tribunal; the

likelihood that an undefeated and powerful nation like Indonesia would cooperate with such a

tribunal is questionable.65 Timorese leaders believe the concrete goal of good relations with

Indonesia is worth more than an international campaign and the pursuit of a principled, yet

“uncertain dream of an international tribunal”.66 The inclusion of the amnesty provision

60 Nurbaiti, supra, note 5. 61 Babo Soares, supra, note 10. 62 Ibid. 63 Whether such proceedings were successful specifically as Indonesian transitional justice mechanisms is beyond the scope of this paper. However, simply conducting the KPP-HAM and Ad Hoc Court processes may have gone a long way in serving the Indonesian transition from Suharto to democratic rule. 64 Nurbaiti, supra, note 5. 65 Babo Soares, supra, note 10. 66 Ibid.

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supports this decision; Drumbl notes that while amnesty may “be a dirty word in the lexicon

of international criminal lawyers, it may not be so in the lexicon of local population.”67

Amnesties tend to “have more appeal and favourable long-term results than international

criminal lawyers care to admit” given locally specific circumstances.68

Practical & Political Considerations In discussing the CTF approach, the geographic proximity of these two nations remains a

crucial consideration, especially since several issues (e.g. maritime/land boundaries) have yet

to be fully resolved. Accordingly, Timor-Leste’s leaders have opted for a practical “forgive-

but-not-forget-the-past” approach to help their nation rebuild; definitive closure is seen as

necessary to promote and strengthen bilateral ties.69

As the Timorese Chairperson Dionisio Babo Soares points out, Timor-Leste has its

own practical interests which remain contingent on good relations with Indonesia. For

example: joining the ASEAN regional security/trade group would be impossible without

Indonesian sponsorship; up to 80% of Timor-Leste’s imports originate in Indonesia where

goods are significantly cheaper than in other industrial neighbours; many Timorese continue

to live or have relatives in Indonesia as a result of integration and those who chose to stay and

work after 1999 turmoil; approximately 3000 Timorese attend Indonesian universities, while

roughly 3000 Indonesians are in Timor-Leste as foreign workers in the formal and informal

sectors.70 Since the international political atmosphere militates against the formation of an

international tribunal, securing good relations with Indonesia through the available means

seems in the obvious and best interest of Timor-Leste given these practical concerns71

67 Drumbl, Mark A, “Atrocity, Punishment, and International Law”. Cambridge University Press (New York, 2007), p 145. 68 Ibid. 69 Babo Soares, note 10. 70 Ibid. 71 Ibid.

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“Justice”: Subjective versus Objective As former President Gusmão noted, the “justice” conceived of in the CAVR report, and which

continues to be demanded by the international community, is rooted in the penal concept and

concurrent goals of retribution, punishment, deterrence, and ‘expressivism.’72 L’ao Hamutuk,

supports this position, insisting that reconciliation and friendship could not be based solely on

establishing the truth about atrocities committed, but must also include “justice” for those

crimes.73 As JSMP reminds us, “crimes committed against humanity are a matter of concern

for the entire international community: they cannot be ignored or disposed of as a matter of

bilateral political expediency.”74 “Justice” for these NGOs therefore includes not simply truth

and reconciliation, but also penal sanctions.

The view that there can be “no peace without justice” is not universal, however.

Tallgren goes so far as to call the international prosecutorial approach a “hollow promise of

prevention”, calling the impact of such “justice” as illusory.75 She further notes the maxim

just as often works in reverse. Priority is “claimed” by stability, thus stability is chosen over

penal justice where the risk of renewed violence exists – a notion applicable wherever

similarly important concerns require stability over penal justice.76 Tallgren further raises the

most fundamental of questions regarding Drumbl’s international justice goals:77 can

international criminal law provide closure to large-scale, deep-rooted injustice and suffering?

Can an expectation of finality after a criminal trial establishes the truth by identifying the

guilty, in fact, violently silence other truths and other kinds of responsibilities?78 These

questions allude to a concept of “justice” left un-served by prosecution. Timorese leaders – 72 Drumbl, , supra, note 55, p 145. 73 La’o Hamutuk Bulletin #6, supra, note 35. 74 JSMP Press Release March 2005, supra, note 36. 75 Immi Tallgren. "The Sensibility and Sense of International Criminal Law." EJIL, Vol. 13, No. 3, (2002) Pp 592-593. (“Tallgren”) 76 Ibid, pp 592-593. 77 Drumbl, supra, note 55, p 12. 78 Tallgren, supra, Pp 592-593.

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principally former President Gusmão in his presentation of the CAVR report to Parliament –

seem to agree with Tallgren and rejected the penal notion of “justice” by establishing the

CTF. Gusmão noted it, first, as ineffective in deterring such behaviour in the future –

particularly important in the Timorese-Indonesian context given their proximity – and second,

rejected that “the absence of justice is a fundamental obstacle in the process of building a

democratic society,” echoing Tallgren’s doubts.79 Despite a variety of institutional goals that

might be served by penal justice, Gusmão asserted the “building of a democratic society is

very much dependent upon the context where we apply this concept” and distinguished the

situation; context counts for “justice”.80 Instead, Gusmão noted the state could not focus on

managing the past, but instead on development in the present and adaptation for the future.

Rounding out his critique, Gusmão made two salient comments regarding the concept of

“justice” sought; his state “assumes the principle that the revelation of truth is a way of

achieving justice, which, under the current circumstances, is the best approach towards the

development of the country,” and supported this by reminding Parliament that “reconciliation

… has been a long-standing process enabling the People of Timor-Leste to endorse the

principles of tolerance and forgiveness as the true basis for the coexistence of diverging

opinions in society,”81 a view in stark contrast with prosecutorial justice models.

Collectivist Modes of Justice82 Drumbl supports Gusmão’s point, namely that externalizing justice using international

prosecution may be out of synch with indigenous notions of “justice”. Externalization may

satisfy international arrest warrants and those insistent on a principled approach to

international justice, but it saps potential deterrent, retributive, expressive, and other potential

79 President’s Final Report of CAVR to National Parliament, supra, note 9. 80 Ibid. 81 Ibid. 82 See Appendices 1 & 2 below for detailed explanations of collectivist modes of justice in Timor-Leste (Lisan) and Indonesia (Adat).

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values from a shared, cooperative process of seeking peace and justice.83 The indigenous

concept of “justice” Gusmão alludes to represents one of the strongest – yet unelaborated to

date – aspects of the CTF process.

Indonesia’s urban centres are industrialized, but like Timor-Leste, the majority of the

country is a rural, village-based society. Rural societies in both nations boast cultural traits

generally referred to as “collectivist”; that is to say, group harmony takes precedence over the

“rights” and needs of individuals, as is typical in western “individualist” societies. These

collectivist traits are manifested in both nations by the rural dwelling majority’s preference for

consensus-based dispute resolution approach over formal penal justice proceedings.84

The common theme in both traditional systems includes a less confrontational and

more reconciliatory, restorative approach to justice. “Penalties” for proscribed behaviours

usually take the form of compensation – even for serious crimes – often in the form of

animals, money, clothes. The point is to restore order and balance to the community and

cosmos, rather than to compensate the “victim” for wrongs or outright punish perpetrators (in

some instances punishment is meted out).85

Complaints against formal externalized justice in both nations concern ‘triers of fact’

who are unaware of the relationships at stake within a given community and bring 'alien'

standards to bear on sensitive community situations. By contrast, local figures take the time

to provide moral advice, warn other community members against the same wrongs, and 83 Drumbl, supra, note 55, outlined on p 145-146. 84 This section relies on the excellent description of Timorese and Indonesian indigenous cultures found in: Butt, Simon, David, Natalie, and Laws, Nathan. “Looking Forward: Local Dispute Resolution Mechanisms in Timor-Leste.” Australian Legal Resources International: produced for The Asia Foundation in Timor-Leste (1st Ed. 2004)-Copy on file with author) (“ALRI Report, 2004”); and: Hohe, Tanja and Nixon, Rod. Reconciling Justice Traditional’ Law and State Judiciary in East Timor. United States Institute of Peace (January 2003). <http://www.jsmp.minihub.org/Traditional%20Justice/Reports/ReconcilingJusticeReport.doc> (Accessed November 23, 2007); and: Mearns, David. Looking Both Ways: Models for Just ice in East Timor. Australian Legal Resources International (November, 2002). <http://www.jsmp.minihub.org/Traditional%20Justice/Reports/Mearns%20Looking%20Both%20Ways%20Report/Mearns%20Looking%20both%20ways.pdf> (Accessed November 23, 2007) 85 ALRI Report, 2004, supra, note 71, pp 9 -10; and pp 73-76.

21

generally ‘weave the social fabric’ back together. 86 The divide between individualist penal

justice and collectivist restorative justice results in a broad desire to keep disputes local and

‘in control’. This is seen as a less socially disruptive method, which helps to restore and

maintain intra and inter village relations – crucial to tight-knit and geographically close

communities bound by relationships of trust and reciprocity. Discord in such a community

could lead to violence and its disintegration.

As Drumbl notes, resolving community disputes externally denies a community the

social cohesion benefits of an internal dispute resolution process – a concept manifestly

evident in the CTF’s process itself which is explicitly designed to improve relations between

parties, though on the national level. Just as both nations’ indigenous cultures encourage

internal resolution first, so too does the CTF. This is a natural extension of the traditional

disdain for “airing dirty laundry” and the need to save face – tenets found regionally in nearly

all South East Asian nations, and at the state level in ASEAN’s “Treaty of Amity and

Cooperation,”87 which extols non-interference and internal dispute resolution between

disputants due to the loss of face associated with merely admitting a dispute exists; ASEAN’s

dispute resolution mechanism remains unused.

Overall, traditional systems here anticipate disputes being settled without ‘outside’

recourse, a trait analogous to the CTF and removal to an international tribunal.88 The CTF

itself seems a “macro” version of the traditional justice practices in both nations.

Conclusion The CTF embodies traditional dispute resolution methods and values common to both

nations, with goals of restoration, reconciliation and moving forward, rather than the penal

86 Ibid, pp 9 -10; and pp 73-76. 87 Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976. <http://www.aseansec.org/1217.htm> (Accessed November 23, 2007) 88 Ibid, pp 9 -10; and pp 73-76.

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justice goals. This approach flies in the face of a principled approach to international justice.

It also represents a 'claw back' of individual rights enshrined in international human rights

conventions in favour of collectivist values. However, the process will likely result in closer

relations with Indonesia and thereby spur joint development opportunities for both countries.

Perhaps the best defence of the CTF’s realist approach to “justice” comes from Timor-Leste’s

Nobel Peace Prize-recipient President Jose Ramos-Horta; in response to criticisms by human

rights groups, Horta replied:

Its great for the human rights activists to be heroic in Geneva and New York where they don't have to live with the consequences of their heroism. They say we don't care about the victims? We care, [Gusmão] and I have lost relatives, friends and comrades over the years. We know the cost of war, the value of peace and the necessity of reconciliation.89

The final word on the CTF process belongs to the democratically elected governments of its

founding nations, not to unelected justice critics and NGO detractors, particularly if the CTF

“means” justify the shared realist “ends” noted above. With the process firmly underway, a

wait-and-see approach is necessary, which may be exactly what course the Security Council

has decided upon before acting on pressure for an international criminal tribunal or not.

Article 25 of the CTF-TOR stipulates the Commission’s final report will contain the

Commission’s findings and recommendations, focusing on revealing the truth, ensuring the

non-recurrence of similar events, fostering reconciliation and promoting friendship, and is due

some time in early 2008. It must be remembered that the CTF process, whether a ‘success’ or

‘failure’, presents no bar to the Security Council establishing an international tribunal.

89 Jeff Kingston. “Peace or Justice? East Timor's Troubled Road.” Japan Focus- Asia Pacific E-Journal (December 21, 2005) <http://www.japanfocus.org/products/details/1673> (Accessed November 19, 2007)

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Appendix 1: Traditional-Local Dispute Resolution Mechanisms in Timor-Leste90

The people of Timor Leste can utilise local dispute resolution, as a precursor, or as an alternative, to this formal system. Given the problems with the formal system, it is not surprising that most Timorese choose local mechanisms for most disputes. What follows is a generic description of the processes used by many LDRMs, derived from our research. It is intended as a very general introduction to LDRMs and does not purport to accommodate regional variation that we understand exists in Timor Leste. A victim or plaintiff can report an offence or wrongdoing to the sub-village head or his staff. At least in cases which involve disagreements between parties rather than the commission of a serious act, the lisan head will usually encourage the parties to resolve the dispute themselves or attempt to assist the parties to negotiate an informal and immediate resolution. Family members are strongly encouraged or even expected to settle disputes between themselves without resort to the village system, often with a bottle of distilled palm wine – tua. If negotiation fails, or if it was inappropriate given the seriousness of the alleged crime or act, the lisan head then sets a date for a hearing and orders one of his staff (the manu ain –literally chicken’s foot) which refers to the informant/courier, etc) to inform the parties, their families and the general community of the date and place of the hearing. On the date determined by the lisan chief, a mat or a number of mats are rolled out, at the place where the dispute will be resolved. This is known as unrolling the mat – buka tikar – which is used to seat all those who attend. Lisan leaders, the parties, their families and members of the community, will usually attend to witness the resolution of the dispute. The lisan head will usually state the procedural rules for the process near the beginning of the meeting. These rules vary from place to place, but generally no one is permitted to talk at the same time as another person. The decision-maker was also required to give both parties time to speak and to listen to what is said, but it was unclear whether this bears the authority of a procedural ‘rule’, or is just a custom or commonly occurring feature. Lisan figures lead the questioning of the parties and any witnesses. They will often provide moral advice and refer to the lisan principles that have allegedly been breached. They will also often take the opportunity to warn other members of the community to refrain from committing the same act as the perpetrator(s). Members of the community are often permitted – even encouraged – to contribute to discussions which take place during the hearing. In some cases, representatives from the Government and the church attend and are involved in the process. Punishments are then discussed and negotiated. Penalties for a wide variety of crimes are usually in the form of the provision of animals, money or clothes to the ‘victim’ or plaintiff, and their family. Severe penalties can be handed down for serious offences. For example, in

90 Appendix 1 & 2 are excerpts from: ALRI Report, 2004, supra, note 71; reproduced under fair-usage rules, solely intended to describe collective nature of Indonesian and Timorese traditional dispute processes for educational purposes; citations removed.

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one village, a lower-level tribunal attempted to have a person hanged for adultery. Perpetrators must often pledge to not repeat their wrongdoings and are usually warned that a heavier punishment will be imposed upon them if they repeat the offence. [...] Appendix 2: Local Dispute Resolution Mechanisms in Indonesia At the village level, a system of voluntary mediation exists under which villagers submit disputes to some indigenous form of settlement process, often aimed at conciliation. Consensus is much preferred over the imposition of a judgment, and “the level of choice for venues and actors… varies in the provinces.” Most commonly and informally, villagers with disputes seek the assistance of religious and community leaders, including adat figures, police and military officers, and religious figures, to resolve their disputes. Religious and community leaders in particular, are seen by many to be the most trustworthy. On a more formal level, there are two village-level institutions involved in dispute resolution: the village head (kepala desa) and the Village Representative Board (VRB). Both are elected by villagers. Although the VRB has not begun operations in all villages, it is hoped that it will be an important dispute resolution mechanism more effective than its predecessor (the Village Consultative Council) which was “inclined to make rather authoritarian decisions.” These LDRMs, and a number of their features, are, in many parts of Indonesia, the product of recent laws and endeavours to decentralise government power. In 1979, the New Order Government had made each village a unit of the Government and imposed the paternalistic Javanese model of village government on each village. Under this system, village heads enjoyed a monopoly of power, and were accountable only to their superiors, not their villagers. Complaints were often resolved through mediation by the village head but this did not always serve villagers well as the village head had little incentive to solve problems that did not impact upon his or her own, or state, interests. This structure formally undermined many of the varying adat village government structures and LDRMs which had been allowed to exist prior to 1979. However, district governments now have the power to re-establish their adat structures and pass district-specific adat-related legislation, allowing and inspiring a revival of adat law and adat-based LDRMs in some areas of Indonesia. A[n Asia Foundation in East Timor] survey conducted in 2001 revealed that 86% of respondents preferred informal, consensus-based resolution of disputes over the formal legal system. The research of Stephens and the World Bank reports a similar preference. Users of the systems cited a number of benefits of local informal systems. [… ] … a significant proportion of respondents to the TAF survey preferred informal dispute resolution because they perceived it to be less confrontational than the formal system, and thought that it maintained community harmony. Villagers and village leaders, it is said,

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preferred not to involve outsiders in the resolution of their disputes, but rather to take the less socially disruptive option of local informal resolution. Some villagers believe that compromise reduces the likelihood of revenge attacks, and leaders preferred the system because it allowed them to avoid external scrutiny. A number of villagers feared losing ownership and control over local issues, and were embarrassed (malu) about airing their ‘dirty laundry’ outside the village. It was thought that compromise best suited the nature of village life. According to the World Bank: Over half of Indonesia’s population lives in rural villages, whose members live close to one another, know one another, share resources and depend on one another for a range of daily activities. Villagers whose lives are so strongly bound by relationships of trust and reciprocity are thus reluctant to solve many kinds of disputes through litigation or criminal prosecution, which are by nature adversarial and deliver win/lose outcomes that are seen to be at odds with the demands of village life. A number of villagers found the process accessible and familiar to them, and appreciated that all those with an interest in the outcome were given the opportunity to provide their input. According to Lev:

A government court, for example, is rarely aware of all the relationships at stake in a local dispute, and it may bring to bear standards alien to custom. Villages occasionally say that formal courts apply lain hukum (different law)… it refers precisely to the court’s natural concern with established substantive rules, in which a village group may be much less interested in than simply getting rid of a conflict with minimum social distress. In addition, settlements induced from outside may deny a community whatever benefit of social cohesion might have accrued from resolving issues internally.… the cultural penchant for compromise of personal conflicts remains strong and it is not at all limited to villagers.

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