AN INTERNATIONAL TRIBUNAL FOR EAST TIMOR

2009 Conference Paper – Understanding Timor-Leste

Dr Clinton Fernandes UNSW Canberra

The struggle for Justice is not a contest between Indonesians and East Timorese. It is a contest between those people in both countries who want justice and those who would allow impunity to continue.

The principal obstacle to justice for East Timor isn't legal but political. The law is on the side of justice. The main task for people around the world who support justice is to participate in converting the legal consensus into a political consensus. The East Timorese government has the legal right to call for justice but it believes it has to be "realistic" because it can't afford to antagonise the Indonesian government. It believes it cannot carry a heavy diplomatic burden on its own. The task ahead is therefore to create the conditions in which a future East Timorese government can insist upon its right. This article outlines how these realistic conditions may be created.

First, it is important to call things by their correct names. It's important to say the words "International Tribunal". There is an hierarchy of phrases:

Second, it is important to go beyond slogans and develop the tools of intellectual self-defence in order to answer the objections that will be raised. The most important objection that will be raised is that an international tribunal is unrealistic. There is a precedent to this kind of rhetoric. During the campaign for independence, the East Timorese and their supporters were constantly told that the Indonesian occupation was "irreversible". As the Commission for Reception, Truth and Reconciliation has noted 'the word "irreversible" recurred like a mantra in official statements for many years' (CAVR 2005: 7.1; 67). Yet, 'in the face of extraordinary challenges including significant disunity, resource constraints, isolation and overwhelming odds', the campaign for independence 'focused on internationally agreed principles, eschewed ideology and violence, was open to the contribution of all East Timorese, and made maximum use of the international system, media and civil society networks' (CAVR 2005: 7.1; 123).

Conventional wisdom about the improbability of an international tribunal is reminiscent of conventional wisdom about the improbability of East Timor's independence. During World War II, US President Roosevelt had appointed an Advisory Committee on Post-War Foreign Policy. One of its functions was to examine the future of the European colonial empires. Referring to Portuguese Timor, President Roosevelt's senior adviser Sumner Welles said that it might eventually achieve self-government, but 'it would certainly take a thousand years' (Louis 1978:237).

It is important to point out that every international tribunal has had its prospects dismissed at first and then come into existence. For example, New York University's Professor of Law, Theodor Meron, once wrote in Foreign Affairs magazine that a Yugoslavia Tribunal 'will not be very effective' (Meron 1993: 122). Less than a decade later, he was president of that Tribunal. When the Tribunal was established, it did not have any high-profile defendants in custody. It had no cooperation from the governments in the region. It received little assistance from the NATO-led peace support forces who controlled the situation on the ground. Its Prosecutor was desperate for a case to prosecute. Some years later, however, the Tribunal's caseload was so heavy that the Prosecutor was trying to refer cases to national jurisdiction rather than have them dealt with at the Tribunal!

The Security Council resolution establishing the tribunal for Rwanda had only one opposing vote – that of the government of Rwanda, which at one point even threatened to prevent tribunal officials from entering its territory. Nevertheless, it did what it was supposed to do, prosecuting many of the leaders of the 1994 genocide. Indeed some of its jurisprudence has made its way into the High Court of Australia, the Supreme Court of Canada, and courts in the US and Switzerland.

Third, it is important to answer objections such as those raised by Dr Jose Ramos-Horta:

'If we were to have an international tribunal, I say we start with whom? We start with Indonesia or start with United States that provided weapons to the Suharto regime. Or Australia. Or all of them at once. And how, and why only Indonesians and why not East Timorese themselves, who including from the resistance side who were involved in violence? Or we should only try the so-called enemy. Or try only the weak side.' (Ramos-Horta 2009)

One possible response would be that His Excellency is inaccurately combining two separate issues: "legality" and "justice". Legality is a technical question of law and history. An international tribunal for East Timor would draw on the central treaty of modern international law, which is the Charter of the United Nations. It would alsodraw on any treaty which was unquestionably binding at the time of the alleged offences. It would apply customary international law, which is found not just in treaties but in the universally recognised customs and practices of states and the general principles of justice. It would then apply general principles of law derived from national laws of legal systems of the world. It would refer to previous judicial decisions of other international tribunals. In response to His Excellency, then, those who bear the greatest responsibility for serious crimes would be the defendants in an international tribunal.

Justice is a much deeper concept. It refers to a longer-term project, which is the replacement of one form of social logic with another. The campaign for an international tribunal is part of this longer-term project because it would work in tandem with the other things that need to be done in order to create a better region – art, music, health, development, labour rights, technology in the human interest, and so on. Many of those working in these areas would not be opposed to an international tribunal. They are natural allies whose support must be enlisted. All they would be required to do is openly declare their support for a tribunal and be prepared to respond when the justice campaign comes calling.

Fourth, and related to the question of defendants, is the matter of jurisdiction. For the purposes of an International Tribunal for East Timor, should the temporal jurisdiction be limited to 5th May 1999 onwards (the date of the New York Agreement), or 7th October 1975, when the Indonesian military seized the village of Batugade?

In law, the existence of an international armed conflict does not require a declaration of war or even formal recognition by the parties that a state of armed conflict exists. The test is whether there are actual hostilities on a level that goes beyond a mere internal disturbance. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached. The Indonesian military's seizure of the village of Batugade on 7th October 1975 triggered an international armed conflict to which the 1949 Geneva Conventions applied. Indonesia and Portugal were signatories to the Geneva Conventions for the duration of the conflict. Since Portugal was a party to the Geneva Conventions, the Geneva Conventions applied to any and every part of East Timor that was occupied by Indonesia. Territory is considered occupied when it comes under the actual authority of the invading army. From approximately December 1978 until September 1999, Indonesia was in sufficient actual control of the territory to be considered an occupying power. Although resistance continued, it was not sufficient to nullify the state of occupation. Thus, the temporal jurisdiction of a Tribunal should commence on a date no later than 7th October 1999.

It is also important to note that an International Tribunal for East Timor will be concerned with individual criminal responsibility rather than institutional responsibility. As the International Criminal Tribunal for the former Yugoslavia stated in the Nikolic sentencing judgment:

By holding individuals responsible for the crimes committed, it was hoped that a particular ethnic or religious group (or even political organisation) would not be held responsible for such crimes by members of other ethnic or religious groups, and that the guilt of the few would not be shifted to the innocent.' (ICTY 2003, emphasis in the original).

Fifth, it is important to take the legal victories that already exist and turn them into political victories. Legal victories mean a lot if you do something with them. As one scholar has pointed out, about ninety years ago, a group of campaigners took the Balfour declaration – just eighty words written by an obscure foreign minister – and turned it into a political force. Then they took what would have otherwise been just another UN General Assembly resolution (the Partition Resolution of 1947) and said, 'No it's not just another General Assembly resolution – it's our birth certificate. And they ran with it.' (Finkelstein 2008)

In the case of justice for East Timor, it's necessary to know the legal victories, and to make sure that everyone else knows them too. That's what successful campaigns do. One legal victory is that Indonesia's own National Commission on Human Rights conducted a detailed investigation in 1999. It concluded that key members of the Indonesian military must face justice (KPP-HAM 2000). We need use this investigation and its recommendations effectively by making sure that everyone else knows it too. Another is the UN's International Commission of Inquiry, which called for an international tribunal and reported that its members 'were confronted with testimonies surpassing their imagination' (ICI 2000). We need to know this, and then make sure everyone else knows it too. Another is the report of the UN's Special Rapporteurs, which called for criminal prosecutions of Indonesian officers responsible, 'both directly and by virtue of command responsibility, however high the level of responsibility' (UN 1999). The Commission for Reception, Truth and Reconciliation in East Timor recommended 'an International Tribunal pursuant to Chapter VII of the UN Charter' (CAVR 2005). We need to make sure that everyone knows about these legal victories. When we publicize them, we participate in the process of developing a political victory.

When opponents of justice say that the East Timorese government doesn't argue for justice, justice campaigners can accurately point out that a neutral, independent East Timorese commission that relied on 8,000 narrative testimonies, a survey of East Timorese households, and a database of 319,000 graves is more reflective of what the East Timorese people really want than a diplomatically vulnerable East Timorese government, which cannot bear the burden of insisting on the implementation of this recommendation.

Sixth, it is important to remember that during the Suharto era, most Indonesians were kept in the dark about what was happening. Reaching out to the Indonesian public is part of the process of achieving an international tribunal, as well as supporting Indonesia's own democratic transition. This must be done in such a way that it is not seen as a contest between Indonesians and East Timorese. Rather, it must be seen as a contest between those people in both countries who want justice and those who would allow impunity to continue.

In order to better publicise the voices of East Timorese and Indonesian groups, a range of media should be developed and disseminated. For example, 5 minute videos in Indonesian (and other languages) should be filmed. In these videos, East Timorese and Indonesian speakers should appeal to the viewers for justice based on law and morality. These videos could be placed on websites as well as screened in schools, universities, union meetings, mosques, temples, churches, synagogues, legal forums, etc. Most East Timorese campaigners for justice are already fluent in Indonesian. They will need to work on their English language skills, just as Jose Ramos-Horta did to good effect during the 24-year campaign.

It is necessary rebuild alliances among the global solidarity movement. Brasil, for instance, may be a future candidate for permanent Membership of the UN Security Council. It is part of the Communidade dos Paises de Lingua Portuguesa (CPLP), and – if the right moves are made – may be a natural ally when the time comes to create an international tribunal. Ireland, which played a superb role in the liberation struggle, will also be helpful in the campaign. So will Portuguese civil society groups, which can exert pressure on the Portuguese government. If the past is any guide, the governments of Britain, the US, Australia and New Zealand won't take the lead in organising a tribunal, but the task for justice campaigners will be to ensure they don't get in the way of a tribunal when the time comes.

Seventh, it is important to remember that despite various acquittals at Indonesia's Ad Hoc Human Rights Court, those acquitted are still able to face a credible court. Those acquitted cannot avail themselves of the protection of the non bis in idem principle, which prevents a person from being judged twice for the same criminal conduct. Although the principle is widely recognized in international human rights law, there are in fact two exceptions – 'shielding' and 'due process'. The former applies where the proceedings had the purpose of shielding the defendant from genuine criminal responsibility. The latter applies where the proceedings were not conducted independently or impartially in accordance with norms of due process.

As Professor Diane Orentlicher's independent report to the United Nations on combating impunity makes clear:

The fact that an individual has previously been tried in connection with a serious crime under international law shall not prevent his or her prosecution with respect to the same conduct if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person concerned to justice (Orentlicher 2004).

Both exceptions apply to the Ad Hoc Human Rights Court. In addition, an international norm has crystallized against amnesties for serious crimes. As the Statute of the International Criminal Court makes clear, 'the most serious crimes of concern to the international community as a whole must not go unpunished'. The promise of international law is that the East Timorese government need not feel it has to confront its military on its own; by requiring prosecutions, international law ensures that the government has the support of the international community (Orentlicher 1991).

Prosecutions would enable the Indonesian people to better respect the rule of law as part of Indonesia's democratic transition. They would send a message that no one is able the law, thereby deepening Indonesia's own democratic culture. This is why numerous Indonesian civil society groups have opposed amnesties and called for prosecutions for what their military did in East Timor. They recognize that most of the important pro-democracy initiatives that occurred in Indonesia during the 1990s occurred precisely because of the aftermath of events in East Timor such as the Santa Cruz massacre of 1991. Self-described 'supporters' of Indonesia who call for amnesties may be more accurately described as supporters of Indonesia's moral and political decay.

Finally, it must be remembered that the campaign for an international tribunal is important precisely because it is difficult. It is important because it will face resistance. But – just like climbing a mountain – campaigners shouldn't expect to get to the top in one climb. They will need to establish a base camp and then a series of more advanced camps before the final push. For those who support justice for East Timor, education and organization remain the watchwords. And since there is there is no statute of limitations on crimes as serious as those perpetrated against the East Timorese, we have the time to do this correctly – to get it right.

CAVR 2005, Final Report of the Commission for Reception, Truth and Reconciliation, Dili, 2005.

Finkelstein Norman 2008, 'How can we help the Palestinian cause?', Workshop at Birckbeck College, University of London, 23 January 2008.

ICI 2000, Report of the International Commission of Inquiry on East Timor, A/54/726, S/2000/59.

ICTY 2003, Sentencing Judgment, Dragan Nikolic IT-94-2-S, 18 December 2003.

KPP-HAM 2000, Report of the Indonesian Commission of Investigation into Human Rights Violations.

Louis William Roger 1978, Imperialism at Bay: The United States and the Decolonization of the British Empire, 1941-1945, Oxford University Press, New York.

Meron Theodor 1993, 'The Case for War Crimes Trials in Yugoslavia', Foreign Affairs, Volume 72, Issue 3, pp122-135.

Orentlicher Diane 1991, Settling Accounts: The Duty to Prosecute Violations of a Prior Regime (1991) 100 Yale Law Journal 2537.

Orentlicher Diane 2004, Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, E/CN.4/2004/88.

Ramos-Horta Jose 2009, Legatum Lecture, MIT, Cambridge.

UN 1999, Situation of Human Rights in East Timor, A/54/660, 10 December 1999.


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