The Politics of Transitional Justice Decision Making since the Referendum
The UNTAET Period
Despite the UN’s forceful statements after the referendum that those responsible for serious crimes must be brought to justice, it was soon apparent that this prosecutorial narrative was being shadowed by a powerful stability discourse that was emanating from some sections of the UN and some East Timorese leaders. Some voices argued that those responsible for the crimes of 1999 must be held to account, especially as some of those crimes could be characterised as ‘crimes against humanity’ and, as such, were subject to the principal of universal jurisdiction and should be prosecuted wherever they occur. A contrasting view, however, promoted the need to strengthen diplomatic ties with Indonesia and support the democratisation efforts of then-resident Abdurrahman Wahid in order to ensure East Timor’s future stability and development.
The emergence of these debates and contradictory messages can be understood as reflecting the complex policy dilemmas facing East Timorese leaders and the UN in the aftermath of the referendum. At this time, the former Indonesian regime, although no longer officially present within the country, maintained a strong influence as a powerful neighbour. An antagonistic Indonesia was perceived as a threat to the future security and viability of East Timor, particularly given the vulnerability of East Timor’s land and sea borders and its fragile economic position. Stability concerns were also motivated by fears that too much pressure on Indonesia could threaten the repatriation of East Timorese refugees from Indonesian West Timor, some of whom were former militia leaders who, it was believed, had the capacity to cause continued instability on the West Timor border. These concerns were not hypothetical given the presence of ‘armed spoilers’ who were ‘operating minor hit-and-run missions across the border’. Given this situation, as one UNTAET official in East Timor explained in late 2000, ‘Everyone here recognises that it’s in no one’s interests to rock the fragile political position of President Wahid’. Compounding these difficulties were the vast social, economic and infrastructural tasks facing those involved in the reconstruction of East Timor and the widespread and chronic poverty affecting much of the population. In this context, both UNTAET and the East Timorese leadership viewed the restoration and maintenance of regional peace and stability as critical to the viability and development of the new nation state.
At the level of the UN Security Council, the stability discourse was also fuelled by other preoccupations, namely, the importance of maintaining Indonesia’s position as a key ally of powerful Western states. The value accorded Indonesia’s economic and strategic influence in the region assumed even more prominence following the terrorist acts of 11 September 2001, when Western states began to seek Indonesia’s assistance in the so-called ‘war on terror’. These events provided impetus for the United States to resume military ties with Indonesia and to support the Tentara Nasional Indonesia, (TNI/National Indonesian Army) which was seen as a stabilising force within the country. Thus, soon after 11 September, then-U.S. President George Bush and Indonesian President Megawati Sukarnoputri agreed to resume regular meetings between the militaries of the two countries. Thereafter, the U.S. government lifted its embargo on sales of non-lethal military items to Indonesia and provided millions of dollars for counter-terrorism measures to Jakarta. Other U.S. allies were similarly focused on rebuilding strategic alliances with Indonesia, including the Australian government, which was intent on restoring the relationship following the prominent role it had taken in encouraging and supporting the East Timor referendum.
Amongst the East Timorese leadership (particularly Xanana Gusmao, the charismatic former resistance fighter and then-leader of the National Council of Timorese Resistance/CNRT), preoccupation with stability questions began to show itself in an increasingly prominent reconciliatory narrative. Thus, the emphatic demands made soon after the referendum for the Indonesian military to be tried began to give way to an emphasis on the importance of forging a new relationship with East Timor’s former occupier. These shifts undoubtedly reflected a growing awareness on the part of the leadership that the international community was turning a deaf ear to demands for the prosecution of Indonesian war criminals and a consciousness of their inability to do this alone. It was soon apparent, for example, that the UN’s initial decision to rely on Indonesian cooperation with the Serious Crimes Process had been fundamentally misguided. By early 2001, the Indonesian government had begun to make it clear it was not willing to cooperate with the MoU, in which it had agreed to ‘the widest possible measure of mutual assistance in investigations or court proceedings’, and was openly ignoring repeated requests for assistance and extradition issued by the SCIU. This meant that the Serious Crimes Process was able to prosecute only suspects present in the territory of East Timor (who were overwhelmingly low-level East Timorese militia leaders) and was unable to touch those living across the border in Indonesia, among them senior members of the Indonesian military.
The absence of serious UN commitment to a retributive justice agenda was also reflected in the under-resourcing of the Serious Crimes Process. Indeed, one only needs to compare the budget for the Serious Crimes Process, which stood at U.S.$6.1 million in 2002 and U.S.$7-8 million in
2004 to 2005, with that of the Extraordinary Courts in Cambodia, which were budgeted at just short of U.S.$19 million per year, the Special Court in Sierra Leone, which cost U.S.$16 million per year, and the ICTY and ICTR, which each have an annual budget of about U.S.$100 million. The impact of this ‘justice on the cheap’ (combined with poor management and planning) could be seen in a range of critical areas. There were, for example, inadequate resources for translation, and it was not unusual for judges to translate for themselves or for a chain of translations to take place that greatly increased inaccuracies. Witness protection was neglected, and, as Cohen observed, witnesses and victims travelling to Dili sometimes rode in the same minibus as the accused they were to testify against. The Public Defenders Unit also suffered and, in its early stages, was staffed entirely by local defense lawyers, most of whom were recent law graduates with no prior litigation experience. Resources for public outreach were also sorely lacking, and the fact that trials were not publicised had critical consequences for public perceptions of the Serious Crimes Process. Another limitation of the Serious Crimes Process was the narrow investigations and prosecutorial strategy adopted by the SCIU. Although it could theoretically investigate all serious crimes cases from 1975 until 1999, the SCIU focused its efforts on ten ‘priority cases’ from the 1999 period, in part because of its limited resources; this left untouched the bulk of cases from the pre-1999 period.
By early 2001, it was also clear that the UN had misjudged its decision to rely on Indonesia to prosecute suspects based in its territory. Although the Indonesian government eventually established an Ad Hoc Human Rights Court to prosecute Indonesians responsible for serious crimes in East Timor during 1999, the mandate of the tribunal was limited to the events that occurred between April and September and restricted to crimes committed in Dili, Liquica and Suai. The Indonesian Attorney General then limited the scope of the tribunal even further by announcing that attention would be given to only five specific cases.43 The promised trials were also repeatedly delayed.44
In the climate of competing imperatives, the CAVR fared better than the Serious Crimes Process. Through its community-based CRP, the CAVR adjudicated almost 1,400 cases of minor crimes, while the nationwide truth-seeking process collected 7,669 statements across all thirteen districts of East Timor which were incorporated into its final report.45 These efforts were facilitated by significant donor funding, including from Japan, which contributed close to U.S.$1 million and the United Kingdom, which contributed approximately U.S.$931,300.46 Nonetheless, despite its considerable achievements, East Timorese perceptions of this institution were influenced by the lack of progress in the prosecution of serious crimes. Studies of participants’ views of the CAVR began to highlight dissatisfaction with the fact that only those perceived to be the ‘small fish’ had been required to atone for their acts (through the
- 43 Richard Burchill, ‘From East Timor to Timor-Leste: A Demonstration of the Limits of International Law in the Pursuit of Justice,’ in J. Doria, H.-P. Gasser and M. C. Bassiouni (eds.), The Legal Regime of the ICC: Essays in Honour of Prof. Igor Blishchenko, Leiden and Boston: Martinus Nijhoff, 2009, p. 282.
- 44 Although Indonesian officials had announced in August 2001 that court hearings would begin in October, it was then announced in October that the judges would not be named until December. (La’o Hamutuk, ‘Sites of Justice-Related Efforts,’ La’o Hamutuk Bulletin, Vol. 2 (2001), pp. 6-7.)
- 45 CAVR, Exec Summary, pp. 20-23.
- 46 CAVR, Annex 3.
community-based CRP), while those responsible for more serious crimes remained free.
-  See, for example, views expressed by UN Secretary General Kofi Annan in DavidCohen, ‘Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model forthe Future?’ in Analysis from the East-West Center, Vol. 61 (Honolulu, HI: East-WestCenter, 2002), pp. 2-3.
-  See, for example, views of the UN official cited in John Aglionby, ‘Timorese Pay Pricefor Stability,’ The Guardian, 15 November 2000, at http://www.guardian.co.uk/world/2000/nov/15/indonesia.easttimor (accessed 17 December 2009).
-  Nehal Bhuta, ‘Great Expectations - East Timor and the Vicissitudes of ExternalisedJustice,’ Finnish Yearbook of International Law, Vol. 12 (2001), p. 173.
-  J. Braithwaite, H. Charlesworth, and A. Soares, Networked Governance of Freedomand Tyranny: Peace in Timor-Leste, Canberra, ACT: ANU E-Press, 2012, p. 193.
-  Aglionby, ‘Timorese Pay Price.’
-  Larke, “ ... And the Truth Shall Set You Free,” p. 655.
-  Reyko Huang and Geoffrey Gunn, ‘Reconciliation as State-Building in East Timor,’In Lusotopie (2004), p. 24.
-  Bhuta, ‘Great Expectations,’ p. 176;Huang and Gunn, ‘Reconciliation as StateBuilding,’ p. 24.
-  Huang and Gunn, ‘Reconciliation as State-Building,’ p. 24.
-  Bhuta, ‘Great Expectations,’ p. 176.
-  See, for example, ‘Gusmao Calls for Reconciliation in Jakarta Speech,’ Lusa, 20 April2001, at http://www.etan.org/et2001b/april/22-30/20gusmao.htm (accessed 7 December2012).
-  Republic of Indonesia and the United Nations Transitional Administration in EastTimor, Memorandum of Understanding, 2000, section 1.
-  Cohen, ‘Seeking Justice on the Cheap,’ p. 7.
-  David Cohen, ‘Justice on the Cheap Revisited: the Failure of the Serious Crimes Trialsin East Timor,’ Analysis from the East-West Center, No. 80 (Honolulu, HI: East-WestCenter, 2006), p. 5.
-  Elizabeth Stanley, Torture, Truth and Justice: the Case of Timor-Leste, London: Rout-ledge, 2008, p. 173.
-  See Cohen, ‘Seeking Justice on the Cheap.’
-  For detailed critiques of the Serious Crimes Process, see the following prominentstudies: Cohen, ‘Justice on the Cheap’;Megan Hirst and Howard Varney, ‘JusticeAbandoned? An Assessment of the Serious Crimes Process in East Timor,’ ICTJOccasional Paper Series, New York: International Center for Transitional Justice, 2005;Caitlin Reiger and Marieke Wierda, ‘The Serious Crimes Process in Timor-Leste: InRetrospect,’ ICTJ Prosecutions Case Studies Series, New York: International Centerfor Transitional Justice, 2006;Katzenstein, ‘Hybrid Tribunals.’
-  See Stanley, ‘Torture, Truth and Justice,’ p. 96.
-  Cohen, ‘Seeking Justice on the Cheap,’ p. 5.
-  Cohen, ‘Seeking Justice on the Cheap,’ p. 17.
-  See, for example, Lia Kent, ‘Unfulfilled Expectations: Community Views of the Reconciliation Process,’ Report for the Judicial Systems Monitoring Programme, Dili: JudicialSystems Monitoring Programme, 2004;Pierre Pigou, ‘The Community ReconciliationProcess of the Commission for Reception, Truth and Reconciliation,’ Evaluation Reportfor the UNDP, Dili: United Nations Development Programme, 2004.