East Timor: from Colonisation to ‘Transition’

East Timor, a Portuguese colony for roughly three centuries, underwent dramatic changes in the mid-1970s. Following the overthrow of the Cae- tano regime in Portugal, in 1974, political parties in East Timor rapidly emerged, including the radical pro-independence party FRETILIN (Frente Revolucionaria de Timor-Leste Independente/Revolutionary Front for an independent East Timor), which had high hopes of a smooth decolonisation process. These hopes, however, were very quickly crushed due to Indonesia’s expansionist ambitions. Indonesia proffered support to a small party called Apodeti, which advocated integration with Indonesia, and encouraged another party, UDT (Uniao Democratica Timorense/ Timorese Democratic Union), which favoured eventual independence but with continued ties to Portugal, to fight with FRETILIN. This led to a brief, but brutal, conflict between FRETILIN and UDT, sometimes referred to as the internal political conflict or civil war, during which an estimated 1,500 to 3,000 people lost their lives.[1] After winning a military victory, FRETILIN declared East Timor’s independence on 28 November 1975. Nine days later, however, the new nation was invaded and occupied by Indonesian forces, an act which was immediately condemned by the UN Security Council and General Assembly.[2] In 1976, East Timor was incorporated into Indonesia as its twenty-seventh province. A tenacious resistance struggle was then waged by East Timorese opponents of the occupation over the next twenty-four years.

An estimated 100,000 to 200,000 people are believed to have lost their lives during the occupation, out of a population of less than 800,000, due to a combination of direct military assaults, illness and starvation.[3] The East Timorese population also endured other forms of violence, including arbitrary imprisonment, torture, assault and rape, repeated displacement, deprivation of basic needs including food and healthcare, and ongoing restrictions on freedom of movement.[4] Within the coercive context of the occupation a great deal of violence was also committed by East Timorese people against one another. Much of this was a consequence of Indonesia’s counterinsurgency strategy, a key aspect of which involved the use of East Timorese as spies and informants and their recruitment into combat battalions, paramilitary groups and civil defence forces. This strategy created a highly militarised society which undermined social bonds and cultivated fear and distrust within local communities.[5] East Timorese political parties and resistance groups were also responsible for acts of violence against the population, not only during the internal political conflict of 1974 to 1975 but throughout the occupation. In the late 1970s, for instance, under the strain of Indonesian military onslaught, FRETILIN arrested and often severely punished those perceived to be ‘traitors’ and ‘counterrevolutionaries’ within its own ranks.[6]

Despite international awareness of Indonesian atrocities, it was not until the Indonesian President Soeharto’s fall from power in 1998 in the wake of the Asian Economic Crisis that real change became possible. The new President B.J. Habibie, announced his government’s intention to conduct a referendum in which the people of East Timor would choose between autonomy within Indonesia and independence. The UN was put in charge of conducting the referendum and, following negotiations with the Indonesian government, the Indonesian police were entrusted with providing security. This decision proved to be poor judgement on the part of the UN as, in the lead-up to ballot day on 30 August 1999, a series of violent incidents took place in which East Timorese militia groups, backed by the Indonesian military and police forces, sought to intimidate voters in order to persuade them of their power to wreak further havoc should they decide to vote for independence.[7]

Amid this tense environment, an incredible 98 percent of registered East Timorese turned out to vote. Within days of the announcement of the results, however, which demonstrated that an overwhelming majority of East Timorese people were in favour of independence, the territory was subjected to an intensified campaign of violence and abuse at the hands of the Indonesian military and police and their proxy local militias. More than 1,000 people were killed, houses and villages were burned and destroyed, around 400,000 people were displaced (including more than 200,000 into West Timor), and all significant government and commercial basic infrastructure was destroyed.[8] On 8 September, the UN was forced to withdraw most of its personnel from the territory due to grave concerns about security, and eventually a multinational military force known as the International Force for East Timor (INTERFET) was deployed to restore order. The UN then assumed the administration of East Timor, through the UN Transitional Administration for East Timor (UNTAET), until formal independence was declared on 20 May 2002.

The UNTAET mission represented one of the most ambitious statebuilding projects undertaken by the UN. Security Council resolution 1272, establishing UNTAET, gave the mission ‘overall responsibility for the administration of East Timor’ and the power ‘to exercise all legislative and executive authority, including the administration of justice’.[9] In effect, this was the first time that the UN had exercised full sovereignty over territory independently of any parallel local authority.[10] UNTAET was responsible for a daunting array of tasks including: providing security and maintaining order, rehabilitating infrastructure, establishing an effective administration, assisting in the development of civil and social services, supporting capacity building for self-government and reconstructing the justice sector.[11] The World Bank, in cooperation with the Asian Development Bank, had responsibility for facilitating economic reconstruction and development, and focused on the sectors of health, education, agriculture, transport, power and water supply and private sector development. East Timor’s transition to independence was expected to take two to three years.

In the immediate aftermath of the post-referendum violence, UN statements and reports were imbued with strong language about the importance of criminal prosecutions to hold the perpetrators accountable for their actions. For example, the Security Council resolution establishing INTERFET in September 1999 condemned all acts of violence and demanded that those responsible be ‘brought to justice’.[12] A report of the UN High Commissioner for Human Rights, also in September, concluded that:

To end the century and the millennium tolerating impunity for those guilty of these shocking violations would be a betrayal of everything the United Nations stands for regarding the universal promotion and protection of human rights.[13]

The demands of East Timorese political leaders and local and international human rights organisations began to coalesce around the need for an international criminal tribunal, along the lines of the tribunals established for Rwanda and the former Yugoslavia[14] to bring Indonesian military generals to trial.[15] These pleas were reinforced by the findings and recommendations of a UN Commission of Inquiry (COI) which visited East Timor in September 1999. The COI concluded that gross violations of human rights and breaches of humanitarian law had taken place that appeared to implicate the Indonesian military, and recommended that the UN establish an international criminal tribunal.[16] Rather than following this recommendation, however, the UN Secretary General - responding to assurances from the Indonesian government - decided that the Indonesian courts must first be given an opportunity to investigate and prosecute perpetrators in Indonesia. At the same time, he declared that he intended to strengthen UNTAET’s capacity to conduct investigations and collaborate with the Indonesian processes.

The UN Secretary General’s decisions led, in 2000, to the creation of the Serious Crimes Process to investigate and prosecute those who had committed ‘serious crimes’ during the conflict and the 1999 period.[17] Serious Crimes were defined as genocide, crimes against humanity and war crimes committed at any time, and murder, torture and sexual offences committed between 1 January and 25 October 1999. Located in East Timor’s capital city, Dili, this process consisted of a Serious Crimes Investigations Unit (SCIU) and a ‘hybrid’ or internationalised tribunal, known as the Special Panels for Serious Crimes (the Special Panels), which was comprised of both East Timorese and international judges, and attached to the Dili District Court. This model was purported to combine the strengths of an international tribunal with the benefits of local prosecutions. It was promoted as being more meaningful to victim populations due to its proximity to the community and more effective at rebuilding the local judicial system than an international tribunal - factors which were expected to contribute to its local legitimacy.[18] A Memorandum of Understanding (MoU) between Indonesia and UNTAET was signed to ensure cooperation in the exchange of evidence, requests for witnesses and making arrests and the transfer of suspects when needed in the investigation and prosecution of serious crimes.[19] In response to international pressure, the Indonesian government announced the establishment of its own Ad Hoc human rights court in November 2000 to try, within its jurisdiction, individual perpetrators who had played a leading role in the post-referendum violence.[20]

UNTAET and East Timorese leaders were also faced with the question of what to do with the thousands of other cases of ‘less serious’ crimes, including looting, arson, theft and the destruction of property, committed immediately prior to and following the referendum of 1999. It was clear that the nascent domestic legal system, with its inexperienced legal actors and limited infrastructure, would not be capable of dealing with all these issues. A related preoccupation was how to ensure the safe return of some quarter of a million people who remained displaced in West Timor following the referendum. To respond to these concerns, following a consultative process, UNTAET created the Comissao de Acolhimento, Verdade e Reconciliacao (Commission for Reception, Truth and Recon- ciliation/CAVR) in July 2001, as an independent statutory body.[21] This body was then formally recognised in the East Timorese constitution.

The CAVR had three core programs. Its truth-seeking program sought to establish the ‘truth’ about the twenty-four-year Indonesian occupation by collecting statements from individuals throughout the nation and compiling them into its final report. The CAVR’s Victim Support Unit was responsible for organising a number of national public victims’ hearings on issues such as women and the conflict, forced displacement and famine, massacres and children and the conflict, during which selected individuals were given the opportunity to give public testimonies. It also organised a number of ‘healing workshops’ and coordinated a small urgent-reparations scheme to provide one-off payments to victims who were deemed particularly vulnerable.

The third, and perhaps most innovative of the CAVR’s programs, was the Community Reconciliation Program (CRP), which aimed to encourage the ‘reception’ and reintegration of former militia members who had committed less serious crimes during 1999 back into their communities. Incorporating local East Timorese dispute-resolution practices, in particular a practice known as nahe biti (lit. stretching, rolling the mat), which typically involves a public meeting mediated by the community’s customary leaders,22 the CRP involved the convening of hearings at the suco (village) level overseen by panels comprising CAVR representatives and local leaders (which were obliged to include women and youth representatives). During the hearings, panel members would listen to the perpetrator of the minor crime (known as the ‘deponent’), victims and other community members, before deciding on an ‘Act of Reconciliation’ that the deponent would be required to complete, which usually involved a form of community service. On completion of the Act, deponents received a court-approved notification that they were immune from civil or criminal prosecution for all those acts they had declared during the CRP. CRP hearings also included a role for traditional elders, and

22 Nahe biti is practised in many different forms throughout East Timor. It is both a process as well as a philosophy that connotes the willingness on the part of conflicting parties to sit together and resolve past mistakes in order to achieve future harmony and social stability. See Dionesio Babo-Soares, ‘Nahe Biti: Grassroots Reconciliation in East Timor,’ in Elin Skaar, Siri Gloppen and Astrid Suhrke (eds.), Roads to Reconciliation (Lanham, MD: Lexington Books, 2005), pp. 225-246.

agreements were generally sealed with binding oaths, and often involved the sharing of betel nut, the sacrificing of a chicken or pig, a symbolic rolling up of the biti (mat) and a celebratory feast. Although it was developed quite separately from the Serious Crimes Process, the CRP was expected to play a complementary role. In particular, it was hoped that this program would relieve the pressure on an overburdened and underdeveloped East Timorese legal system and thus enable the courts to concentrate on the ‘most serious’ crimes.

At first glance it may appear that the transitional justice approach adopted after the referendum represented a balanced, coordinated and locally responsive attempt to combine prosecutions, reconciliation and truth seeking. The reality, however, was far from it. I now chart the competing political imperatives that shaped transitional justice decision making during the period of UN transitional administration of East Timor from 1999 to 2002, following formal independence in 2002, and in the wake of the so-called ‘crisis’ of 2006. An analysis of these dynamics highlights that decision making about ‘dealing with the past’ involved a fraught process of negotiation between and amongst an array of international and national actors which brought to the fore specific interests and multiple views. In this process, stability concerns, which highlighted Indonesia’s economic and strategic influence in the region, came to overshadow retributive justice goals.

  • [1] Parts of this chapter have appeared in a different form in Lia Kent, The Dynamicsof Transitional Justice: International Models and Local Realities in East Timor, London: Routledge 2012;Commission for Reception Truth and Reconciliation (CAVR).Chega!, Dili: CAVR, 2005, part 7.2, p. 8.
  • [2] See UN Security Council Resolution 384,22 December 1975, and UN General Assembly Resolution 3485,12 December 1975.
  • [3] The CAVR estimates that approximately 100,000 people died during the occupation.See CAVR, Chega!, part 6. Other sources include Geoffrey Robinson, East Timor:Crimes Against Humanity, Report Commissioned by the OHCHR, July 2003, Geneva:Office of the High Commissioner for Human Rights, 2003, p. 16;Ben Kiernan, ‘TheDemography of Genocide in South-East Asia: the Death Tolls in Cambodia, 1975-79,and East Timor, 1975-80,’ Critical Asian Studies, Vol. 35, No. 4 (2003), pp. 585-597;John Taylor, East Timor: The Price of Freedom, London and New York: Zed Books,1999, pp. 84-92;Geoffrey Robinson, If You Leave Us Here, We Will Die: How GenocideWas Stopped in East Timor, Princeton, New Jersey: Princeton University Press, 2010,p. 51.
  • [4] CAVR, Chegai, part 7.
  • [5] Robinson, If You Leave Us Here; Ben Larke, ‘“ ... And the Truth Shall Set You Free”:Confessional Trade-offs and Community Reconciliation in East Timor,’ Asian Journalof Social Science, Vol. 37, No. 4 (2009), p. 654;CAVR, Chega!, part 4.
  • [6] CAVR, Chega!, part 5, p. 19.
  • [7] Robinson, If You Leave Us Here, p. 106.
  • [8] CAVR, Chegal, part 7.5, p. 48.
  • [9] United Nations Security Council (UNSC), UNTAET Mandate, Security Council Resolution 1272 (1999) (UN Doc. S/RES/1272), at http://www.un.int/usa/sres1272.htm(accessed 19 May 2010).
  • [10] Jarat Chopra, ‘Building State Failure in East Timor,’ Development and Change, Vol.33, No. 5 (2002), p. 28;Simon Chesterman, ‘East Timor in Transition: Self determination, State-Building and the United Nations,’ International Peacekeeping, Vol. 9, No. 1(2002), p. 46.
  • [11] UNSC, UNTAET Mandate.
  • [12] United Nations Security Council, Security Council Resolution 1264 (UN Doc.S/RES/1264), 15 September 1999.
  • [13] United Nations Commission on Human Rights (UNHCR), Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor (E/CN.4/S-4/CRP.1), 17 September 1999, para 48.
  • [14] International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY).
  • [15] See, for example, National Council for Timorese Resistance (CNRT), Resolution Commission 3 (Outcomes of the CNRT National Congress 21-30 August 2000), copy on filewith author;National Council for Timorese Resistance, ‘CNRT on Recent Eventsin West Timor;Calls for an International Tribunal, Postponement of CGI Meeting,’ Media Release, 13 September 2000, at http://etan.org/news/2000b/CNRT2.htm(accessed 30 November 2009);‘Urgent Steps Needed to Establish Justice,’ Letter tomembers of UN Security Council to Members of the United Nations Headquarters fromEast Timorese NGOs, 24 October 2001, at http://members.pcug.org.au/~wildwood/01octsteps.htm (accessed 10 January 2011).
  • [16] Office of the High Commissioner for Human Rights (OHCHR), Report on the International Commission of Inquiry on East Timor to the Secretary General, January 2000(UN Doc. S/2000/59).
  • [17] UNTAET Regulations 2000/11 and 2000/15.
  • [18] Suzanne Katzenstein, ‘Hybrid Tribunals: Searching for Justice in East Timor,’ HarvardHuman Rights Journal, Vol. 16 (2003), pp. 245-246.
  • [19] Republic of Indonesia and the United Nations Transitional Administration in EastTimor Memorandum of Understanding between the Republic of Indonesia and theUnited Nations Transitional Administration in East Timor Regarding Cooperation inLegal, Judicial and Human Rights Related Matters (5-6 April 2000), at http://www.unmit.org/legal/Other-Docs/mou-id-untaet.htm (accessed 3 January 2010).
  • [20] Indonesian Law 26/2000.
  • [21] UNTAET Regulation 2001/10.
 
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